STEM OPT and Off-Site Employment – New Issue Raised in H-1B Requests for Evidence

[krishna0125]

F-1 Students who have been approved for STEM OPT extensions may be aware of recently updated guidance from USCIS regarding the types employment that can qualify under the training plan requirements. The unannounced website update goes beyond the STEM OPT regulation to state that “the training experience must take place on-site at the employer’s place of business or worksite(s)” and that “online or distance learning arrangements may not be used to fulfill the employer’s training obligation to the student.”

Although no notification was provided to students by DHS regarding this change, and students received approved EAD cards from USCIS authorizing the work, USCIS is attempting to enforce its new interpretation by issuing Requests for Evidence on applications filed to change status to H-1B. The RFEs state:

Beneficiary’s Status

F-1 Optional Practical Training (OPT) Status:

 

USCIS then requests that documents related to the STEM OPT training period be submitted:

 

 

 

Keep in mind that USCIS is also in the process of finalizing guidance on unlawful presence for F-1 students, see http://immigrationgirl.com/uscis-new-policy-memo-on-f-1-students-and-when-unlawful-presence-kicks-in-for-status-violations/. If the guidance is finalized in its current form, beginning August 9th, if an F-1 student is found by DHS to have failed to maintain status, he or she would potentially begin accruing unlawful presence on the day after he or she engaged in the unauthorized activity that caused the status violation. In other words, the memo appears to allow unlawful presence to be calculated retroactively.

When assessing whether a student accrued unlawful presence and was no longer in a period of stay authorized, the USCIS officer can look into

• Information contained in the systems available to USCIS (ie information provided in the SEVIS system);
• Information contained in the alien’s record; and
• Information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

My concern is that USCIS will gather the requested evidence and then, on the H-1B change of status request, issue a determination that the student violated F-1 status. Not only could the change of status portion of the H-1B petition be denied, but unlawful presence would also begin to accrue. Students who have received approved OPT STEM extensions and have worked off-site should pay close attention to this guidance memo and be aware that those who accrue more than 180 days of unlawful presence during a single stay, and then depart, may be subject to a 3-year or 10-year bar to returning back to the United States.

 

source: http://immigrationgirl.com/stem-opt-and-off-site-employment-new-issue-raised-in-h-1b-requests-for-evidence/

[Run]

ippudu past lo OPT meda contracting chesi   ippudu FT chesthunna..... H1 extenstion appudu  past antha thavi prior employment not according to rules  ante matram biscuit e iga  

[Aakupaccha_caradu]

[Run]

edwardss

June 11, 2018

Does the retrospective action also apply to any former companies a person has worked on in STEM-OPT? For example, a person might have received her H1b receipt under her current legitimate company, but might have worked briefly in a contracting position earlier in STEM-OPT. Will that create issues?

Reply

• 

  ImmigrationGirl

  June 11, 2018

  The RFEs do also ask for a list of all employers the student has worked for during all periods of OPT as well as pay statements for the entire time. It’s possible that they could determine the prior employment was “unauthorized”

[srdh21]

34 minutes ago, Run said:

edwardss

June 11, 2018

Does the retrospective action also apply to any former companies a person has worked on in STEM-OPT? For example, a person might have received her H1b receipt under her current legitimate company, but might have worked briefly in a contracting position earlier in STEM-OPT. Will that create issues?

Reply

• 

  ImmigrationGirl

  June 11, 2018

  The RFEs do also ask for a list of all employers the student has worked for during all periods of OPT as well as pay statements for the entire time. It’s possible that they could determine the prior employment was “unauthorized”

anni kastaalu students ke..i think students should explore options to move to other countries.. it is easier for them at young age than at a later time

entry level jobs are not easy for H1 anymore, it has been a challenge for folks with 12-15 yrs experience to prove their RFE's

Europe/Middle East may be the best option if they keep those options open

[Anta Assamey]

47 minutes ago, Run said:

edwardss

June 11, 2018

Does the retrospective action also apply to any former companies a person has worked on in STEM-OPT? For example, a person might have received her H1b receipt under her current legitimate company, but might have worked briefly in a contracting position earlier in STEM-OPT. Will that create issues?

Reply

• 

  ImmigrationGirl

  June 11, 2018

  The RFEs do also ask for a list of all employers the student has worked for during all periods of OPT as well as pay statements for the entire time. It’s possible that they could determine the prior employment was “unauthorized”

Already H1B meda vundi extesion lu kuda ayyina vallani kuda next time adige anta scene ledu ani anukunta... 

[srdh21]

2 minutes ago, Anta Assamey said:

Already H1B meda vundi extesion lu kuda ayyina vallani kuda next time adige anta scene ledu ani anukunta... 

already 4th extension ki vellina vallani.. initial US stay start ninchi W2 adigina RFE's unnayi.. go and check trackitt.. why do you think they are not going to ask about the past

[futureofandhra]

17 minutes ago, srdh21 said:

already 4th extension ki vellina vallani.. initial US stay start ninchi W2 adigina RFE's unnayi.. go and check trackitt.. why do you think they are not going to ask about the past

Yes ee madhya CPT chesina vallaki rfe padindi Ani DB lo.choosa

[Run]

24 minutes ago, Anta Assamey said:

Already H1B meda vundi extesion lu kuda ayyina vallani kuda next time adige anta scene ledu ani anukunta... 

rule is rule..applies to any petition annukunta... 1st H1 or  100th H1 ...  vallu every petition ni treat as same  ( first or ext)  

[Anta Assamey]

12 hours ago, srdh21 said:

already 4th extension ki vellina vallani.. initial US stay start ninchi W2 adigina RFE's unnayi.. go and check trackitt.. why do you think they are not going to ask about the past

 

11 hours ago, Run said:

rule is rule..applies to any petition annukunta... 1st H1 or  100th H1 ...  vallu every petition ni treat as same  ( first or ext)  

Ayyindachu .... just nenu anukunnadi cheppanu... u might be right.... koncham kudirite aa track it link ivvu bro ... 

[Anta Assamey]

12 hours ago, srdh21 said:

already 4th extension ki vellina vallani.. initial US stay start ninchi W2 adigina RFE's unnayi.. go and check trackitt.. why do you think they are not going to ask about the past

The RFEs do also ask for a list of all employers the student has worked for during all periods of OPT as well as pay statements for the entire time. It’s possible that they could determine the prior employment was “unauthorized”

 

Paina comment ki telling ... Ippudu Rule marchi ... Appudu client daggara chesavu ante.... it doesnt make sense kada... Appati rule prakaram u r legally right kada... 

[krishna0125]

10 hours ago, Anta Assamey said:

The RFEs do also ask for a list of all employers the student has worked for during all periods of OPT as well as pay statements for the entire time. It’s possible that they could determine the prior employment was “unauthorized”

 

Paina comment ki telling ... Ippudu Rule marchi ... Appudu client daggara chesavu ante.... it doesnt make sense kada... Appati rule prakaram u r legally right kada... 

Eppudu rule marchala asalu rule adha ani USCIS vadu argue chesthadu..and to be honest ee third party work location, specialty occupation requirement, wage levels evvi anni congress law lo mention cheiyaledhu..uscis vadu current situation taggattu law ni intercept chesi RFE isthunnadu.

Monna NJ lo evado court case vesadu dheni medha, lets see how its goes..

[krishna0125]

06/27/2018: New Rule, Effective of 08/09/2018, of Accrual of Unlawful Presence for F, J, and M Nonimmigrants and Reminder for STEM OPTs of Third Party Placement Bar of USCIS

• At the AILA annual conference, information indicates that AILA members raised this issue with the USCIS officials but USCIS officials apparently refused to back off from their new policy barring third party placement of STEM OPTs. Accordingly, unless and until this issue is litigated and resolved in court or change of mind of the USCIS, this new policy will remain in effect and in the worst cases, they may go after STEM OPS for enforcement actions. STEM OPTs are reminded that when the new rule of accrual of unlawful presence for F, J, and M nonimmigrants, the unlawful presence rule did not applied to these non-immigrants with D/S (Duration of Status) I-94s unless the DHS recognized violations of status or initiated any action for the alleged violation of nonimmigrant status. The DHS is eradicating this special privilege for the F, J, and M nonimmigrants and they will be treated the same with any other nonimmigrants when it comes to the rule of accrual of unlawful presence which leads to either three-year bar for 6-month accrual of such unlawful presence or 10-year bar for one-year accrual of such unlawful presence, from admitting to the United States. The consequences are considered "extremely" harsh and damaging.
• Again, there are some issues involved with the late USCIS announcement of new STEM OPT third-party placement bar in its website, but it may be prudent for the STEM OPTs who work at the third party worksites of their employers to resolve this issue "urgently" and "seriously" and take actions as soon as possible, at least before August 9, 2018. Otherwise, they can potentially suffer irreparable damage for their inaction. Just a reminder!

http://www.immigration-law.com/

So August 9 taravtha OPT cant work for clients?. oka vela august 9 taravatha evaraina dorikitha they will be in big trouble..

DHS and USCIS kalisi panichestha 90% opt will be out of country for good anukunta..

H4-ead kanta big threat laka undhi opt-ead situation ippudu

[killudada]

maa brother ki monna h1 pick ayyindhi bros.... working at client location.

Idhey R eF Ey iccharu bhaiyya. ela answer cheyyalo ardham kavatle 

As this is a new type of R ef ey, not many attorneys are having an idea on how to answer this. Any info on how to tackle this ?

 

[budgetpadbhanabam]

mana desi gallu mararu sami..papam cpt opt valla midha jali choopinchlasidi poyi..already h1b vunna vallani kooda ilane cheyyali antaru...gc vachina vallu h1b valla midha crying, h1b midha vunna vallu cpt s and h4 eads midha crying..citizenship vunna vallu GCs and h1bs, cpts, f1s midha crying..manollu chnadramandalam midhakau poina mararu...thu mi mokallo...