On May 29, 2008, a conglomerate of anti-H1B organizations including the Immigration Reform Law Institute, The Programmers Guild and a few other groups, filed a lawsuit in the U.S District court in Newark, NJ challenging the authority of the DHS in creating a rule such as the OPT extension rule. The lawsuit is urging the court to declare the DHS regulation unlawful.
The DHS OPT extension rule implemented just before the H1-B season this year, allows F1 students with degrees in Mathematics, Engineering, Science or Technology and currently working under the Optional Practical Training program to extend their tenure from 12 months to 29 months, allowing them to maintain F1 status until their H-1Bs are processed and the work start date of October 1st is reached.

Legal Background

Three organizations and nine individual plaintiffs are seeking three reliefs:
1. Declaratory Judgment,
2. Permanent and Temporary Injunction, and
3. Mandamus relief.

The suit advances three cause of action:

(1) The OPT extension contradicts the F-1 Student Visa rules which doesn’t allow for a 29-month guest worker program for STEM while on this visa status. The lawsuit argues that the DHS has exceeded its statutory jurisdiction and authority the implementation of this rule (Violation of 5 USC Section 706(2)(C))

(2) The provisions of the OPT extension are not legal and as such is deemed an arbitrary, capricious, an abuse of discretion 9Violation of 5 USC Section 706(2)(A)

(3) The waiver of public notice and comment period as mandated under APA are not justified (Violation of 5 USC Section 706(2)(D).

The lawsuit has based on cause of action for the violation of Administrative Procedure Act (APA), for allowing the rules to be enacted without the mandatory 30 to 90 days given for public comment. DHS on the other hand had also cited the Administrative Procedure Act, which allows the agency to dispense with the notice period and public commenting procedure, when an agency, for good cause, finds that those procedures are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(B). The

DHS had stated that the haste was necessary as “this rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy,” and “By extending the training period by an additional 17 months to students who are employed by businesses enrolled in E-Verify, we are further ensuring a legal workforce in the U.S. and aiding good corporate citizens.”
The plaintiffs are asking the court to declare that the OPT extension rule unlawful, the implementation of this rule as a violation of federal law and to issue a preliminary and perhaps a permanent injunction against the DHS from implementing or enforcing this rule.

Political Background

This is more of a politically significant lawsuit, as it is the first time a direct challenge has been made to Bush Administration’s latest efforts to fix the H1-B quota crisis. The DHS OPT extension rule was proposed after the department received a joint letter from 20 U.S. Senators in November, 2008 urging the agency to act on it. On the legislative level, the Senate could have made the OPT extension possible by passing Senator Coleman’s Action Act, S. 2653, which is currently pending. The catch? This bill, along with the OPT extension, also proposes to reinstate the visa revalidation program, which unfortunately is not favored by the above mentioned senators.

The anti-H1B conglomerate has termed the move as simply a way around the H1-B cap and that the “’fix” has no actual legal basis and has been pushed forward as most of the immigration-related legislations are currently grounded in the pre-election atmosphere. The conglomerate has named a few other such “illegal” rules, the 3-year TN visa proposal being one of them. This can turn out to be a very significant lawsuit, both politically and for the immigration sphere as well.

April 2008 is turning out to be a land mark month for student visa program in US. First, the Department of Homeland Security came up with an Interim Rule on OPTs for F1 Students which, among other thing, made the transition from student to employee status much easier now. Now, barely two weeks after that rule came into effect, DHS is proposing to increase the Student and Exchange Visitor Program (SEVP) student and certification fees to fund certain necessary enhancements in the program.

While enhancements are welcome, the almost double increase in fees may not send the positive signal that the Interim Rule had. In the recent past, the student visa regulations have become stricter and stricter, cutting off the flow of students and leaving many universities grumbling about empty foreign student slots. Students are not clear as of yet whether this proposition will work to their benefit or not. It is also clear that US is now focusing on retaining foreign born US graduates and advance degree holders to solve the skilled professional shortage that software giants are alluding to. If approved, the changes will be implemented by Fall 2008.

What is SEVP?

The Student Exchange Visitor Program (SEVP) is used to collect and maintain up to date information regarding each and every foreign student in the US, their dependents, their school programs, current status etc. This is done through a web-based technology, the Student and Exchange Visitor Information System (SEVIS), which is used both government organizations as well as education institutes. The SEVIS was launched as a security measure following the 9/11 terrorist attack to keep track of international students and exchange visitors. The aim was to allow various government security agencies immediate access to data concerning any student visitor in US. While the system is working quite well as of now, the DHS has found that the system is not able to handle the large volume of data being compiled due to the increasing number of foreign students currently in the US.

What is being proposed?

The Department of Homeland Security (DHS) proposes to increase the SEVP student fees, certification fees and introduce a fee for the re-certification program. The proposed rule will probably open to the public for comments from August and go into effect on Oct. 1, 2008. In effect the proposed rule will-

• Hike the fee for nonimmigrant student from $100 to $200
• Hike the fee for exchange visitors from $100 to $180
• Hike the fee for school certification from $350 to $1,700
• Hike the charges for Site visit from $230 to $655 per site visit

The proposed will NOT effect-

• The fees for au pairs, camp counselors and other short term work/travel program participants
• Government sponsored exchange visitors
• Institutes currently certified with the SEVP will not be required to pay any additional fees to re-certify under the new rules.

Why is the hike being proposed?

As we have already mentioned, DHS has stated that the program requires additional funding to support the ever increasing number of students. The main reason for it is the SEVP is funded entirely by student and university fees and receives no government grants. Since it was launched in 2003, the program’s scope has increased and is under pressure from the increasing number of fraud investigations conducted frequently. In addition, the recertification program of schools is also under funded. With the increase in fees DHS will be able to

• Improve efficiency of the web-based SEVIS system by enhancing its features
• Improve customer service & Support by hiring more people
• Improve National Security by hiring more agents
• Catch up on the Re-certification program for new schools

For more information, visit www.ice.gov.sevis

U.S. Citizenship and Immigration Services (USCIS) has announced today it would allow F-1 students, whose H-1B petitions have been selected for fiscal year (FY) 2009, to request a change of status in lieu of consular notification. This is a short-term measure taken to accommodate the changes introduced by the recent Interim final rule on F1 students and OPT students.

Short term measure to benefit H1B 2009 petitioners currently on F1 status

The interim rule, among other changes, allows F1 Students having a pending H1-B to cover the period in-between the end of their non-immigrant status and H1B work start date by automatically extending their F-1 status till October 1 (H1B work start date). The extension is subject to USCIS decision of the petition i.e. the extension is not valid if the H1B application is denied or rejected.

To avail this extension, the student needs to have applied for H1B for the following fiscal year and have requested a change of status.  However, since the rule was published on April 8^th, a day after the last date of applications for H1B 2009, most F1 students filed their H1B with request for consular notification under the assumption that they will receive their H-1B visa at a consular office abroad.

USCIS has therefore decided to grant this year’s beneficiaries the change to avail the benefit of the new rule by allowing employers to request a change of status on behalf of the F1 students who have received their H1B receipt, within 30 days of the date of issuance on the receipt notice.

How to request a change of status?

To request a change of status, petitioners or their representatives must send an e-mail with the request to the USCIS Service Center where their petition is pending, within 30 days of the issuance of the receipt notice.  Special email addresses have been assigned for each service center (see below).

The email request must include

1. The receipt number
2. Petitioner’s name
3. Beneficiary’s
   • Name
   • Date of birth
   • I-94 (Arrival/Departure Record) number, and
   • Student and Exchange Visitor Information System (SEVIS) number.

NOTE: The request will not be accepted without a valid receipt number.  Any F-1 student with a pending request for change of status to any other status than H1B, cannot request for a change of status to H1B without withdrawing the previously filed request.

E-mail addresses for requesting change of status are:

Vermont Service Center
Premium Processing cases:  VSCPPCAPGAP.Vscppcapgap@dhs.gov
Non-Premium cases:  VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov

California Service Center
Premium Processing cases:  CSC.ppcapgap@dhs.gov
Non-Premium cases:  CSC.nonppcapgap@dhs.gov

As a follow up the the interim rule that recently extended the Optional Practical Training periods for certain foreign students, USCIS has also released an updates to clarify some questions. Read our article OPT Extended For Highly Skilled Foreign Students for more details on the rule.

Download & Read the full F1 OPT Extension Q & A Guide

The U.S. Department of Homeland Security is extending the period of Optional Practical Training (OPT) by 17 months for qualified F-1 non-immigrant students. That means the OPT period will now be 29 months instead of 12.

Who are eligible for extension?

The DHS interim rule makes this extension available to only F-1 students with a degree in science, technology, engineering, or mathematics and who are employed by businesses enrolled in the E-Verify program.

To qualify, the F-1 student must:

1.      Currently be participating in a 12-month period of approved post-completion OPT

2.      Have successfully completed a degree in science, engineering, technology, 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;

3.      Be working for a U.S. employer in a job directly related to the student’s major area of study;

4.      Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program. E-Verify is a free, internet-based system operated in partnership with the Social Security Administration that helps employers to determine the employment eligibility of newly-hired employees; and

5.      Properly maintain F-1 status.

Good new for H1B applicants

The interim rule also makes provisions for F-1 student’s whose status andwork authorization are going to expire before he or she can get her H-1B by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The rule will implement further changes including allowing students to apply for OPT within 60 days of graduation.

Homeland Security Secretary Michael Chertoff has stated that the extension will enable US to retain highly skilled foreign students as workers.

Studying in the USA is the dream many of you cherish. Some of you might have started preparing yourself for it by appearing for TOEFL (Test of English as a Foreign Language) and  GRE (Graduate Record Examination). In case, you have already gone through all that and gotten through to a University of your choice, then the only step left is – getting a US student visa.

Now, most sites can provide you with information such as necessary documents, where to apply and how to apply etc. However, this information doesn’t necessarily cover the unique questions that pop up here and there. We, at Immitips have compiled a few points that seem to confound many of our student readers. Here is what we came up with:-

GETTING A VISA

Q: I have my I-20 form from the college. When should I apply for a visa?

As per rule you can apply 120 days before the date of enrolment mentioned in the I-20 form.  Our suggestions: Earlier the better. Apply on the 120th day prior to the date of enrolment, if you can. But note though that you can’t enter the US before 30 days from the date of enrolment, even if you get your visa earlier.

Q: What’s the annual quota for student visas?

Well here is the good news. There is no ceiling or quota for US student visas. The bad news, you only have a short window within which you need to get a visa, as spelled out by your enrolment date. Apply online, its faster.

Q: Doesn’t an I-20 form issued by a university guarantee a Visa?

Unfortunately, the answer is no. I-20 form is merely a requirement. The rest depends on how well you do in your interview. See our Tips for F1 Visa Interview to find out how you can make sure that Visa is yours.

Q: If my visa is rejected, can I apply again and how soon?

Yes, you can apply any number of times that you want. Most often, the first visa rejection allows you to get an interview date within 12 days. And you have to turn up with whatever documentation you didn’t have the first time.

If you get two refusals within a period of six months, you will then have to start from the beginning by getting a visa appointment and shelling out the visa fees ($100 processing fee and the VFS Service fee), and fresh documentation.

But most importantly, if your visa is denied, you are not going to be able to meet your University enrolment date. So, let’s concentrate on NOT getting your visa rejected.

NOTE: Most often Visas are denied because the applicant could not prove that he or she is not using the Student Visa to gain entry into US and become a citizen later. So, make sure your paperwork and your words convey just how attached you are to your own country. If the US consul specified a reason for denying your visa, your new documentation should cover that drawback.

Q: My University did not require me to take the TOEFL or GRE. Do I need to show any proof of that?

Yes. You will have to provide a letter issued by the university corroborating your statement. But you might still face a problem at the interview because of the lack of standardized test scores.

Q: I have relatives in the US. Will that affect my visa chances?

Even though there is no legal issue, the answer is most like YES. Especially if you have a parent or a spouse who is a US citizen, you are going to have to prove that your ties to your home country are stronger.

And whatever you do, DO NOT lie about having a relative in the U.S. Its better to face the music by being candid then the fact come up through any other issue later.

Q: Can I change schools during my studies?

No. Well at least not before completing a year of study or the course duration, which ever comes first. But we suggest, pick a school and stick to it. Changing schools may not work in your favor in future if you want to extent or renew your visa.

In case, you have just applied and then had a change of heart, apply separately again for your second choice of college as soon as possible, so that you don’t miss the enrolment date.

Q: What documents can I show as proof that I am coming back?

There is no fixed list of documents that we can suggest. But whatever you choose should show your economic and social ties to the country. Like property owned by you, social ties like parents, spouse or fiancé waiting for you, other social obligations like long term association with local charities or organizations. Anything helps. Also, be convinced about your own arguments before you present them. The US Consuls faces lots of applicants’ everyday and any hesitation in your part can immediately disqualify you.

FINANCING

Q: What do I need to show that I can afford to attend school in the US?

Look at Part 7 on your Form I-20. It will tell you the amount of funding you will need to cover the first year’s expenses. This amount includes tuition, fees, living expenses, (also expenses of dependents if applicable) etc. You have to show you have enough assets/funding to cover this amount immediately. Many applicants choose to pay the the first year’s fees and show that receipt. It will be an added benefit, but it’s not mandatory.

If you are going for longer durations like two-year Master’s program or Five-years research program etc, you will have to show proof of assets and funding to cover the entire duration of studies and not just the first year.

Q: I plan to finance my education myself. What do I need?

Get yourself a Foreign Exchange Release Permit from an authorized bank. You will need to show how you intend to transfer your funds from India to the US. You can also show a sponsor in the US. But that may work against you by branding you an intending immigrant.

Q: Can I take bank loans to for my studies?

Yes you can. But you will have to show documentation to prove that you can repay the loan. Talk to the representative from the bank or institute that is offering you the loan. In most cases, they know what documents you will need from them.

Do not take a huge loan as that can make a negative impact on your visa application. It should not look like that you cannot finance your education by yourself at all.

Q: Is it mandatory to pay the first year’s tuition expenses?

No. But in most cases paying the fees and showing a receipt from the University can work in your favor as far as proof of financing goes.

SPONSORSHIP

Q: Is having a foreign sponsor a drawback?

Yes and No. I say no because, looking at the enormous cost of education, a US sponsor sounds like a logical option. More then half of the foreign students in US are dependent on aids or scholarships. Just make sure, you have good answers for questions like why and under what terms is the person in US sponsoring you. Here, if you can show that you intend to come back to your country and use the education to work here, then there would be fewer problems with this issue.

Q: Will it work against me if I have two sponsors – one in India and the other in US?

Legally, this is not an issue. But again, you will need show that having half sponsorship from US does not constitute as motive for migration.