Ombudsman Recognizes Immigrant and Non-Immigrant Employees Should Have Standing, No Guidance From USCIS

The Office of Citizenship and Immigration Services Ombudsman (the "Ombudsman") presented their 2016 annual report yesterday. Our office aims to highlight one unsettled issue regarding the rights of the employee to have standing as the beneficiary in the I-140 and H-1B petitions. We have received numerous inquiries from beneficiary employees regarding their rights and their lack of information about their own cases. At this time, unfortunately, we must continue to reluctantly turn them away by stating that they have to communicate their issues with their employer.

USCIS must be made aware that deciding whether the employees have standing in their own cases is a pressing issue and must move forward on providing guidance to the stakeholders.

In the event that the petitioner-employers fail to cooperate with the beneficiaries in providing notices or answering the Requests for Evidence (RFEs), then the beneficiaries are left in the dark about their immigrant statuses. Without this information, beneficiary-employees would be unable to make informed decisions about their lives. Decisions that U.S. Citizens take for granted, such as where to move to next month, do I need to go to another country, where would my children go to school, would be on hold for them.

While the Ombudsman is aware of this issue, USCIS still has not moved forward in determining how immigration attorneys can advocate for beneficiary-employees when their employers are refusing to cooperate.

Legal Support For Employee's Rights
The America Competitiveness in the Twenty-First Century, S. 2045 Act (AC21) and The White House Report, Modernization and Streamlining Our Legal Immigration System For the Twenty-First Century, published July 2015 (the Modernization Report) both support the idea of providing the beneficiary-employees with the right to receive notices directly from, and to respond directly to, USCIS.

AC21, Section 106(c), specifies that an "alien has the right to receive a notice of action on an I-140 once an accompanying adjustment of status has been pending for 180 days or more. Furthermore, once this right to notice vests, an alien may provide evidence in response to a request for evidence or notice of any other adverse action on the underlying visa petition." Additionally, even if a beneficiary changes employers, any unadjudicated adjustment of status that has been pending for at least 180 days will continue to be the basis for permanent residence. The AILA-USCIS Benefits Liaison Committee Memorandum, published March 18, 2004, explains that "so long as the initial petition was bona fide and non-frivolous, no further inquiry may be had regarding the employer’s ongoing ability to pay or intent..."

The Modernization Report states that "[w]hile waiting for these immigrant visas, many nonimmigrant workers may be effectively prevented from changing jobs or receiving promotions, thus hindering natural career progression and the ability to make other long-term life plans. This stagnancy for years on end not only negatively impacts the beneficiary’s economic stability, but also impacts the economic growth of local communities and our nation." Thus, allowing the employees more power in their own immigration processes would allow more employee mobility, which would lead to increases in this country's economic growth.

As such, both the AC21 and the Modernization Report recognizes that employer-employee relationships may breakdown during the time that it takes for USCIS to adjudicate the I-140 and the adjustment of status. Furthermore, to prevent the employee from working on his/her own case or to prevent him/her from searching for another employer without jeopardizing his/her immigration status is to keep him from the simple liberties that U.S. Citizens often take for granted, the freedom of employment mobility, the freedom to determine what happens to their lives and the lives of their families.

Our immigration law office continuously receives inquiries from employees regarding what they should do when their employer-employee relationship breaks down and they want to find another job. There is currently no progress towards allowing them to independently get notices, talk to USCIS regarding their petitions, or answer their RFE's, We join the Ombudsman in urging USCIS to move towards allowing the employees themselves to take action for their cases and to give the employees a voice.

Follow us on Twitter (@ZLImmigration), Facebook (zlimmigration), or LinkedIn as we track this development.

H-3 Visa As An Alternative to H-1B

As promised in my tweet earlier, here is a report on the H-3 visa as an alternative to H-1B. First of all, special thanks to Margaret Holland-Sparages, a Senior Associate at Deutsch Williams, for sharing your experience and knowledge with the attendees. It really is a great and under-utilized program and I will very likely be suggesting this program to those of my clients that are concerned about the H-1B quota and the H-1B rejections. Below is a brief background of the program and why this program should be considered.

Background

Under INA Section 101(a)(15)(H)(iii), H-3 visas are granted to temporary workers "invited by an individual or organization for purposes of receiving instruction and training 'in any field of endeavor...other than graduate medical education or training.' The training program must be one that is not designed primarily to provide productive employment." Chapter 5, Kurzban's Immigration Law Sourcebook, 14th Ed.  

In order for your H-3 petition to be approved, among many other requirements, you must prove that the beneficiary cannot obtain the training in her own country, that the program does not exist in the her own country, and that it is unique to the degree in the U.S. You also must prove that the H-3 beneficiary will not be a productive member of your company, due to the required training process. Importantly, you must show that this training program is required for a number of employees at the company and was not implemented just for the purpose of obtaining the H-3 visa. 

This Program Should be Considered Because...

As every immigration practitioner and every H-1B-dependent employer recognizes, H-1B is an exhausted program. For many years, the 65,000 quota has been filled within the first week of April. This leaves many qualified foreign nationals here on F-1 status with no options but to return to their home countries upon the expiration of their F-1 status. Simply because of the inadequacy of our H-1B program, many talented individuals leave the U.S., leading to a waste of our resources as we spend to train them only to have them leave and contribute to the growth of other countries. Without an expansion of the H-1B quota and without considering the alternatives, the decision of which talented individual stays and which one leaves is left to chance (i.e. the H-1B lottery).

The H-3 program should be utilized for many reasons. I name only a few here. First, the lives of international students and the well-being of the U.S. economy is too important to leave to chance. Second, the high demand for STEM talent is vastly unsatisfied and H-3 can help fill that gap. Last, but definitely not the least, this program will provide these highly qualified individuals a chance to stay and another chance for the H-1B lottery or an alternative employment-based visa at a later year.

Even if your beneficiary has been selected in the H-1B lottery, there is another level of review to see whether he/she meets the requirements of H-1B. If she is ultimately denied the H-1B, the H-3 program should also be considered in order to allow her to stay here and utilize her talents, for the same reasons mentioned.

Training and The STEM OPT Extension

As mentioned above, in order to use the H-3 visa, the foreign national must be here for a training program. The training requirement should be easily satisfied for a F-1 beneficiary who has been here for 12 months of OPT. The main argument to use is that 12 months is not nearly enough to fully train someone for the workforce. Of course, the evidence provided to prove that would be different for each case.

However, please note that the USCIS will deny the H-3 visa if the beneficiary already possesses substantial training and expertise in the proposed field of training. This raises the issue of the new 24 month STEM OPT Extension. It will be substantially more difficult to argue that the H-3 beneficiary still needs further training after three years in her field of specialty. However, Mrs. Holland-Sparages suggested the wonderful idea of arguing that new training is needed because of technological advancements or new scientific discoveries, which is definitely not a problem in the STEM fields!

In creating the training program for the H-3 petition, it should state the reasons that the training is required to extend to a specific length of time beyond the OPT period. Moreover, there are many other requirements that should be outlined, such as the kind of training to be given, the level of supervision to be given, and the structure of the program. These issues should be considered with an immigration attorney. we would be able to talk about exactly how to draft the training program to meet the needs of the H-3 program.

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. Embedded in Cambridge's innovative culture. we understand that particularly for startups, human resource issues such as where to find the next qualified employee can be daunting. We are here to provide you guidance and counsel on hiring globally so that you can focus on growing your business. 

Pokémon Go, the Masuda Method, and Immigration

Pokémon Go was released a little less than two weeks ago and it is already the most reported subject in the history of Google.  I am a Millennial, and like many Millennials out there, we were the first to learn of these mythical creatures almost 20 years ago.  We have all dreamed of one day capturing them all.  Today, that dream is almost a reality.  These little pocket monsters simply show up in front of us when we turn on our phones!

But, the question now is how do we really capture ALL OF THEM?  Sure, there are ways to travel within your country to catch as many as possible.  Experts say that you have a higher chance of catching water Pokémon near bodies of water, fire Pokémon near the desert, and some Pokémon are just everywhere.  If I see another Rattata...

But how do you capture the truly rare ones...like a Shiny?

What is a Shiny? 

Blue Gastly? That would be a Shiny!

Shinnies first appeared in Generation II, Gold and Silver.  From my limited knowledge, shinnies are extremely rare Pokémon that appear as a different color from the regular Pokémon, for example a green Rattata or...a gray Jigglypuff.  These can be caught either in the wild or by cross-breeding internationally through the Masuda Method (appropriately named in Japanese: 国際結婚 international marriage).  The chances of catching them in the wild is about 1 out of 8192 in the older games.  However, tech blogs are hinting that these will be available in Pokémon Go.

The Masuda Method
The Masuda Method appeared in Generation IV (2007 - Diamond, Platinum, Pearl - way after my time), named after Junichi Masuda, the Game Freak director who inserted the method into Diamond and Pearl.  The Masuda Method requires the breeding of two Pokémon of different genders and from different regions (the game recognizes this by registering the different language of the Pokémon's name).  This method increased the likelihood of getting a shiny by SIX TIMES.

If this method is to work in Pokémon Go, we would need to not only implement trading between players of the same country but also to enable players to trade internationally and to catch Pokémon all over the world.  With the way this game is developing, this feature just might be a reality sooner than we think.

If the need for international travel becomes a reality in this game, the U.S. Department of State provides a number of visas to travel to the U.S. with plenty of time to travel through the country and catch all the Pokémon with English names you need.

Visa Waiver Program
The Visa Waiver Program allows visitors from certain countries to travel to the U.S. without obtaining a visa, as long as they obtain approval from the Electronic System for Travel Authorization (ESTA).  Visitors from qualified countries can visit for tourism or business reasons for up to 90 days!  As such, visitors from countries such as South Korea, Italy, Japan, and Singapore can visit the U.S. with very little government-mandated travel preparation.  See the Department of State's website for more information and for a complete list of countries qualifying for the VWP.  However, the same legal requirements under B-1 (business) and B-2 (tourism) visas apply; most importantly, the foreign national must prove non-immigrant intent.  So, you should speak with an immigration attorney regarding which facts would show that your stay in the U.S. is only temporary.

Visitor's Visas
If your home country is not listed as a VWP country, you can still enter and stay in the U.S. for up to 90 days.  For more information, visit our website.  If you ultimately discover that you need more time to catch all the Pokémon in the country, you can file I-539 to extend your stay.  However, both the length of extended stay and the approval of your extension request are subject to the adjudicator's discretion.  As such, we would highly advise that you have an alternative reason for the extension request, perhaps something other than that you need more time to catch them all, however pressing that task may be.


Disclaimer: This post is for firm marketing purposes only. The poster does not claim to be an expert in the game Pokémon Go in any way and apologizes for any misstatement in the functionality of the game. However, we welcome comments to correct any misstatements or any thoughts on the post.

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. We advise startups on hiring and retaining global talent so that they can focus on growing their business. 

EB-5 for Startups and Entrepreneurs

For EB-5's, most investors or business people think of large real estate development projects, having $500K or $1 million in money readily available to invest, and immediately creating those 10 jobs that are required to get permanent residence. This is largely a generalization of this underutilized program.

If you are a foreign national considering starting a business here in the U.S. and you would like to eventually obtain permanent residence, an EB-5 immigration path is worth considering. Here are some of the issues that you should consider with an immigration attorney at the outset.

Loans as a Legal Source of Funds
You do not need to have the entire $500K or $1 million readily available, you may take out loans in order to invest in your business. However, you must own the assets that you use to collateralize the loan. USCIS will frequently issue Requests for Evidence (RFEs) requesting more information on your ownership of the collateral if your application shows that your source of funds includes loans.

For example, if you own real property and are thinking about either selling the real property to obtain funds or using the property as collateral, USCIS will want to see documentation showing that the property was initially obtained with legitimate funds. If you are using the property as collateral for your loan, USCIS will additionally request documentation of the loan or the mortgage contract and documentation to show that the value of the property is such that it will support the amount of the loan. 

Incremental Investments
If you do not have the funds for an EB-5 investment initially, you can invest in your business in incremental investments so that your total investment meets the $500K or $1 million required for an EB-5 petition. This strategy is beneficial for startups that do not have the funds initially but grow to become profitable later. For EB-5 investment purposes, entrepreneurs have the option to use the profits from the business and reinvest back into the business, so as to add to the total amount invested in the business.  

Word of caution for those using this strategy: investors still must prove that the source of funds came from them personally, not from the business. As such, investors must show that they have taken a distribution from the profits of the company as their own income and then reinvested that distribution back into the business.  

No Time Limit For Job Creation
The requirement that the 10 jobs must be created within 2.5 years is a common misconception. There is no requirement that 10 jobs must be created at the time of the filing of I-526, or even at the time of filing for I-829. The purpose of the EB-5 is economic development. USCIS understands that for startups, it may take years for them to sustain 10 jobs. For startups then, the focus of USCIS's inquiry shifts to whether the business will continuously and increasingly sustain "full-time" and "permanent" positions.

The employees that qualify for "full-time" must work at least 35 hours per week for your business. With all the other business issues that startups often face, it is understandable that EB-5 requirements may fall to the wayside. However, if you are or are considering using your business as a EB-5 investment to get your permanent residence, ensure that you maintain the documents for those that are hired from the beginning (i.e, the pay stubs and the job descriptions of your employees). This will make the EB-5 approval process much less cumbersome. 

Qualifying Relationships 
Many startups turn to friends and family for assistance in running their business. While the EB-5 regulations do not restrict you in who you can hire, it requires that the business must create "full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters)." INA §203(b)(5)(A)(ii) (as quoted by Susan L. Pilcher in "Preserving the EB-5 Option for the Entrepreneur: Strategic Considerations for Startup Counsel," Immigration Options for Investors and Entrepreneurs, 3rd Ed. 2014). 

Immigrants "lawfully authorized to be employed in the United States" include conditional residents, temporary residents, asylees, refugees, or aliens remaining in the United States under suspension of deportation. 8 CFR §204.6(e). Therefore, you may not use your immediate family members or any one here on non-immigrant work visas such as H-1Bs or L-1s to count towards the jobs creation requirement.  

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. Embedded in Cambridge's innovative culture. we understand that particularly for startups, human resource issues such as where to find the next qualified employee can be daunting. We are here to provide you guidance and counsel on hiring globally so that you can focus on growing your business. 

Is My Potential H1B Employee Cap-Exempt?

As our law firm begins to accept and work on new H1B petitions, many of which are filed subject to the 65,000 cap, it is important to remember that potential employees with petitions filed within the last 6 years could have their H1Bs refiled cap-exempt. Taking advantage of this exemption could provide H1B-dependent employers with unparalleled benefits when continuing to employee or when hiring a foreign national.

Background
The INA mentions that the period of authorized admission for a nonimmigrant entered through the H1B visa may not exceed 6 years. INA Section 214(g)(4). Additionally, "any alien who has already been counted, within the 6 years" before the approval of the new petition will not be counted again toward the 65,000 unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.  INA Section 214(g)(7).

Moreover, 8 CFR Section 214.2(h)(13) specifies that a new H1B petition may not be approved unless "the alien has resided and been physically present outside the  United States...for the immediate prior year." We note that the same section also mentions that brief trips for business or pleasure would not count when considering whether the foreign national has been outside the U.S. for one year. What are considered to be "brief trips" would be considered on a case-by-case basis and is beyond the scope of this blog. You should consult an immigration attorney if you believe this may be an issue.

Application

Our understanding is through analyzing the USCIS memorandum on the "Procedures for Calculating Maximum Period of Stay Regarding the Limitations on Admission for H-1B and L-1 Nonimmigrants" (The USCIS Memo). In order to help employers understand this very confusing but advantageous subject, we have created a flowchart attached to this blog. Following this chart, employers can understand which options are available for the particular H1B candidate.

To understand your options, we begin with the basic question: Has your potential employee ever been approved  for H1B subject to the cap?

If your answer is no: Then the only option would be to apply for a new H1B and count against the cap, unless you are a cap-exempt employer, which will be the topic of a later blog on H1B.

If your answer is yes: Then the next level of analysis becomes whether he was approved more or less than 6 years ago. If the prior H1B for the foreign national was approved more than 6 years ago, then he must apply subject to the cap. However, in order for him to be eligible to apply, he must also have resided outside the U.S. for the immediate year prior to his petition.

Alternatively, if the prior H1B was approved less than 6 years ago, then he would be able to apply cap-exempt regardless of whether he has never entered the US or has entered the US and used time on his H1B. If he never entered the U.S., then he would be eligible to apply cap-exempt and be eligible for the full 6 years, subject to the discretion of the adjudicator.

However, if he has entered the U.S., made himself available to work for an employer within the last 6 years, and left more than a year ago, then he would have more choices. In that event, he would be able to either (1) apply cap-exempt and recapture the rest of the unused time OR (2) apply for a new H1B subject to the cap. If you choose to apply for a new H1B, then he would be able to work longer, if approved. Of course, if you are a cap-exempt employer, you should always choose the latter, as a new H1B would then be granted for the full 6 years.

If he left the U.S. less than a year ago, however, then the only option would be to apply cap-exempt and to recapture the unused time.

Recapturing Time
If you and the foreign national wish to use and is eligible for the recapturing time option, you must submit documentation to demonstrate that he was outside the U.S. for the period of time that is requested to be recaptured. The USCIS Memo suggests that the "burden of proof rests with the alien to establish his or her eligibility for any recapture benefits." Thus, the foreign national must prove that he was outside the U.S. for the requested time. The type of documentation required may depend on his particular situation.

Contact our law office to talk about your options and to see whether your beneficiary's documents are sufficient.

Can Employers Sponsor Relatives For Employment-Based Immigration? Understanding The PERM Process Through A Recent Case.

The short answer to that question is yes. However, as shown by the recent case released by the Board of Alien Labor Certification Appeals (BALCA), Matter of Palm Café Restaurant, the answer is not that simple.  AILA Doc. No. 16061303 (June 7, 2016). In adjudicating the appeal of a denial of PERM labor certification, BALCA has determined what would be considered a "bona fide job opportunity" under the PERM process, regardless of the familial relationship between the employer and the employee. 

Legal Background

The Program Electronic Review Management (PERM) Process is required for those employers petitioning under the EB-2 and EB-3 preference categories. Before the EB-2 and EB-3 petitions can be filed for an employer to sponsor a beneficiary employee for Legal Permanent Resident status, employers must obtain the PERM labor certification from the Department of Labor (DOL). 

This is an attestation-based program, through which the employer would attest that:

1. At least the prevailing wage would be paid to the employee,
2. The wage was not calculated based on commissions, bonuses, or other incentives, 
3. He/she has enough funds available to pay the wage promised to the employee, 
4. The employee will be put on payroll when he enters the U.S., 
5. No unlawful discrimination was involved in the hiring process, 
6. The job opportunity is available not due to any lock out, strike, or labor dispute,
7. The job opportunity's terms are in compliance with federal, state, and local laws,
8. The job opportunity has been and is clearly open to any U.S. worker,
9. The U.S. workers were rejected for lawful, job-related reasons, 
10. The job opportunity is for full-time, permanent employment. 

For quick overview of the PERM Labor Certification, please visit our webpage on PERM.

Matter of Palm Café Restaurant

In Matter of Palm Café Restaurant, the Certifying Office (CO) denied the Employer's labor certification application because it did not meet the 8th attestation above, that the job has been and is clearly open to any U.S. worker. The CO found that because the beneficiary employee was the brother of one of the "husband-and-wife owners" of the business, and the beneficiary was possibly an integral part of the employer's business, the job opportunity was never clearly open to the U.S. workers. Therefore, it failed the 8th attestation. 

However, BALCA disagreed and looked at the factors brought up in MMB Stucco, LLC, stating that "when determining whether a bona fide job opportunity exists, the CO should consider the "totality of the circumstances." 2011-PER-00715, PDF at 4 (BALCA May 7, 2012) (citing Modular Container Systems, Inc., 1989-INA-00228, PDF at 8-10 (BALCA July 16, 1991) (en banc). 

The Board considered the nine factors in MMB Stucco:

1. Whether the employee is in the position to control or influence hiring decisions regarding the job
2. Whether the employee is related to the corporate directors, officers, or employees
3. Whether the employee was an incorporator or founder of the company
4. Whether the employee has an ownership interest in the company
5. Whether the employee is involved in the management of the company
6. Whether the employee is on the board of directors
7. whether the employee is one of a small number of employees
8. Whether the employee has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application, and
9. Whether the employee is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the employee. 

Conclusion

The Board concluded that most of these factors are inapplicable to the employee in this case, with the exception of the second and ninth factors. Regarding the ninth factor, BALCA concluded that the employee is not "so inseparable" that the employer would be unlikely to continue the operation without the employee. There are many other chefs in the restaurant that could take over the position if the employee terminates his position. The Board agreed with the  CO on the second factor, that the employee was indeed related to the owner of the restaurant. However, the Board held that mere relationship to the owner, without more, is not enough to prove the lack of a "bona fide job opportunity."  

However, employers should take note that the BALCA undergoes a highly fact-intensive analysis in Matter of Palm Café Restaurant. If you are a small business employer thinking about hiring your foreign national relative as an employee, Zhang-Louie, Immigration Legal Counsel can help you take apart your own set of facts and closely analyze whether your organizational structure and hiring process are sufficient for the CO to grant your PERM Labor Certification. 

Benefits and Burdens of the New STEM OPT Rules

The new STEM OPT rules became effective May 10, 2016, authorizing students pursuing programs listed in the Designated Degree Program List for 24-month STEM OPT Extensions. This is a significant increase from the 17-month OPT Extension. Additionally, students will also be able to obtain an additional 24-months STEM OPT based on a prior degree, explained in more detail below.

During this transition period, from May 10, 2016 through August 8, 2016, those with more than 150 days left of their 17-month STEM OPT may file the I-765 for an additional seven months of OPT, provided that they have complied with all the requirements of the 24-month STEM OPT Rule mentioned below.

1. Wage and Hours Must be Commensurate With Other Similarly Situated Workers

The new 24-month STEM OPT Extension requires that the employer establish a clear employer-employee relationship with the student. Volunteering and other unpaid opportunities under the new STEM OPT is no longer allowed. The student's duties, hours and compensation must be "commensurate with those provided to the employer's similarly situated U.S. workers."

What type of wages would be "commensurate" with other similarly situated U.S. workers? Similar to the filing of H-1B petitions, immigration attorneys working on STEM OPT Extensions should obtain prevailing wage determinations (PWD) for the particular position held by the student and submit this information to the DHS along with the STEM OPT Extension. However, the DHS has also stated that alternative compensation schemes may be allowed, so long as they are "commensurate" with the compensations of other simularly situated employees.  This is significant for start-up companies with insufficient funding to pay their employees. These companies may offer the international student a percentage of ownership in the company, so long as the companies' U.S. employees are compensated in the same manner.

2. Employer Must Provide A Professional Training Opportunity 

With the 24-month STEM OPT Extension, the DHS has implemented the Form I-983, which both the student and the employer must complete.This form requires that employers work out a formal training plan with the student, which also includes evaluations of the student's progress during the two-year training period.


Through this form, the employers providing the STEM OPT Extension must attest to the DHS that:

1. They have the sufficient resources and personnel available to provide appropriate training in connection with the specified opportunity;
2. The STEM OPT student will not replace a full- or part-time, temporary or permanent U.S. worker; and
3. The opportunity assists the student in attaining his or her training goals. 

The more formal training program seems to be geared towards readying the student for an H-1B petition in the future. If the employer is required to compensate and rigorously train the student, it is more likely that the employer will sponsor the student for an H-1B petition and subsequently, EB-2 or EB-3. This is good news for the students.

However, this imposes a much greater burden on the employers than the original rule, as employers now must decide before hiring the student whether they have the resources to (1) compensate the student and (2) provide formal training to the student. Employment of the STEM OPT student also opens the employer up to site visits by the DHS, which could be unannounced if it is the result of complaints of noncompliance with the new rule.

All of these could dramatically deter employers from hiring STEM OPT students, for fear of the consequences of non-compliance. As a result, the students could be adversely affected by this new rule.


How these requirements will affect employers' decisions to hire a student on STEM OPT Extension remains to be seen. In many industries, such as high tech or biotechnology industries, employers may have no choice as there is a shortage of U.S. workers. However, keep in mind that if you are a startup company, you have more options, at least in terms of compensation to the STEM OPT student.

ADDITIONAL 24-MONTH STEM OPT

Despite the burdens on employers, the new rule is favorable to students that were not chosen in the lottery to have their H-1B petitions adjudicated or were chosen but subsequently denied H-1B. Previously, these students would have to return to their home countries and apply for the H-1B through consulate processing, provided that their current employer is still willing to sponsor them.

Under the new rule, in addition to being able to apply for an extension of their current 17-month STEM OPT if they have more than 150 days left of their term, they can also apply for a new 24-month STEM OPT, after the first extension, based on a previously-obtained degree. This leads to a total of SIX years of potential OPT for STEM students.

Timeline for a Hypothetical 2 STEM OPT Student

However, the rule gets a bit complicated if the student chooses to obtain a second 24-month STEM OPT Extension. (See Hypothetical to the right). This second extension cannot be immediately after the first 24-month STEM OPT Extension but MUST immediately follow another 12-month OPT. This second extension may relate to an earlier STEM degree, for which they have not used the STEM OPT, but it does not
have to relate to the degree on which the immediately preceding 12 month OPT is based. In terms of training, reporting, compliance through Form I-983, this second STEM OPT job would need to relate to that prior STEM degree, providing even more burden to the employers to contact the DSO of the school where the student received his degree many years ago.

If you want to hire a student for STEM OPT, consult Zhang-Louie, Immigration Legal Counsel and we will make sure that you follow the compliance and reporting requirements to hire and retain that valuable STEM OPT employee, so you can focus on your business's growth and profits.