http://www.dartmouth.edu/~legal/policies/Employment%20Verification.html
Dartmouth employees traveling into the U.S. with a laptop should be aware that U.S. Customs and Border Patrol now has a policy of including laptops in routine or non-routine searches of individuals and their posessions, when deemed necessary.
See the following for more information:
http://www.cbp.gov/xp/cgov/newsroom/congressional_test/laptop_searches.xml
http://www.law.gmu.edu/assets/files/news/Laptop_search_testimony(06232008).pdf
Office of Visa and Immigration Services
603 646-3474
During a teleconference on April 17, 2008 with NAFSA, SEVP and USCIS representatives provided some guidance on the new OPT rule.
Please note: These answers were verbal and are subject to change. SEVP and USCIS iterated plans to provide further written answers to these and other questions submitted, including additional information in the form of DSO Operating Instructions.
Applying for Regular OPT
For post-completion OPT, a student may file an I-765 with USCIS up to 90 days before being enrolled for a full academic year.
For pre-completion OPT, a student may file an I-765 with USCIS up to 120 days before the proposed OPT date if s/he has completed a full academic year.
Note: If the student has not completed a full academic year, the student may only file the I-765 for pre-completion OPT up to 90 days before the end of the full academic year.
If an I-765 is submitted before the window allowed for that type of OPT, the I-765 will be denied and the fee will not be returned.
The new rule also applies to students who were already within their grace period as of April 8, 2008 (whose program end date was between 02/08/08 and 04/07/08).
Although it is now permitted by regulation, SEVIS is not yet programmed to allow the DSO to update SEVIS with an OPT recommendation during the 60-day grace period. See the NAFSA Practice Advisory Applying for OPT during the 60 Day Grace Period for information on a work-around.
Cap Gap Provisions
The new rule granting "cap-gap" extensions to F-1 students who applied for a FY 09 H-1B number limits the cap-gap extension to beneficiaries of H-1B petitions who requested change of status. Since the cap-gap rule was published after the FY 09 H-1B filing season opened, however, many beneficiaries had applied for consular notification rather than change of status, following guidance applicable under the prior rule. To address this, USCIS developed a policy that allows the petitioning employer to convert "consular processing" requests to "change of status," so that the beneficiary can benefit from the new cap-gap provision. Employers must make such requests within 30 days of the issuance of the petition receipt notice, by e-mailing the Service Center handling the petition. See the USCIS notice for further details.
USCIS has confirmed that employers may use the same process to convert either pending or approved consular processing petitions to change of status in USCIS Process To Convert Consular Notification Request To Change Of Status for Cap-Gap Eligibles
The extension for "cap gap" status and work authorization officially commences on the date of filing the H-1B (the date received by USCIS), not the receipt date.
If a student's program end date was before the filing of an H-1B petition on April 1, 2008, but s/he is still within the 60 day grace period as of April 8, 2008, the student's F-1 status would be extended under this provision. However, it is not clear whether the expired work authorization would be revived. USCIS and SEVP are consulting with counsel.
For a student who is the beneficiary of an H-1B petition for a cap exempt (higher education) employer, USCIS will likely NOT recognize that s/he is eligible for the extension of status & work authorization under the cap gap provision of this rule. The rationale is that a cap exempt employer can choose a start date that matches the end of authorized F-1 status or work authorization. USCIS and SEVP are consulting with counsel.
The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition. However, the student would have a grace period after the termination during which s/he is authorized to remain in the United States for up to 60 days to prepare for departure from US, change degree level, transfer, change status, etc. as long as the student has not otherwise violated status.
USCIS and SEVP are developing a policy regarding documentation that would prove that a student's status and authorization have been extended. Most likely, it will involve a SEVIS data fix with notation on the I-20, e.g. "F-1 status and work authorization extended to (insert date)."
Eligibility for 17-month STEM OPT Extension
The 17-month extension is only possible one time per lifetime; a student is NOT eligible to receive an extension more than once, regardless of degree level. The extension can only be granted in one 17 month period; the period cannot be "split" into 2 periods.
Students on "pre-completion" OPT will NOT be eligible for the extension.
For a student who applied for "pre-completion" OPT after finishing all course requirements but before being conferred the degree, and then continued the OPT after the program end date, SEVP will consider for a limited time allowing a data fix of the program end date so that these students will be considered "post-completion" in SEVIS.
USCIS will determine whether a student's degree is eligible for the STEM extension by ensuring that the CIP code listed on the I-765 and/or the I-20 is one of the fields listed in the DHS STEM list.
When asked to list the degree in item #17 of the Form I-765, the student should list the major as it appears in SEVIS and on the I-20 (i.e. the name associated with the eligible CIP code), not the name used by the institution. Note: the I-20 only lists the primary major. If the STEM major is the student's secondary major: DSO should handwrite on the I-20 "Secondary major CIP code: (list CIP code), (title of major as it appears in SEVIS)". Student needs to include documentation of the major that relates to the CIP code which qualifies the individual for the extension.
Since the employment must directly relate to the STEM field, it is recommended that the student include a statement from the employer regarding how the employment relates to the STEM field.
The student does not need to provide any documentation that an employer is an E-Verify employer; the only thing required for the I-765 is the employer's E-Verify number and name as listed in E-Verify.
There has been some confusion surrounding a statement in the supplementary information to the rule that "only new hires can be verified in E-Verify once an employer registers with the program." USCIS confirmed that this does not mean that a current OPT employer would have to "fire and re-hire" a student employee, but just that the student would not have to be "verified" again through E-verify, as long as the employer follows the normal I-9 obligations.
Applying for the 17-month STEM OPT Extension
A new Form I-765 is now required, and is available on the USCIS Web site at www.uscis.gov/I-765. The prior version of the form will be accepted only through May 8, 2008. The form and instructions have been changed to implement the new OPT regulations.
Changes include:
The eligibility code for an F-1 student seeking optional practical training (OPT) has been changed. The eligibility code (c)(3)(i) will no longer be used and has been replaced with the following three codes: (c)(3)(A) for pre-completion OPT, (c)(3)(B) for post-completion OPT, and (c)(3)(C) for a 17-month STEM OPT extension.
Item 17 asks for information needed to process applications for the 17-month STEM OPT extension, including spaces for the degree conferred and the employer's E-Verify Company or Client Identification Number.
The student should file the I-765 with the USCIS Service Center with jurisdiction over the address where the student currently resides, not where the first I-765 for regular OPT was filed.
A student may apply for the 17-month STEM OPT extension anytime during the regular period of post-completion OPT up to the expiration date of the student's current OPT employment authorization. Students are encouraged to file early so that they receive the new EAD before the end of the regular period of post-completion OPT.
The new I-765 instructions state that a "copy of the degree" must be submitted for applications filed under (c)(3)(C). USCIS clarified that this could include:
o Official transcripts
o Unofficial transcripts
o Copy of the diploma as long as it states the program of study
Changing Employers on a 17-month Extension
A student may change employers during the 17 month extension. However, USCIS and SEVP advise against changing employers while the I-765 is pending, since the I-765 names a specific employer. Note: Students are advised to consult with an attorney regarding the effect of changing to an employer that is not the employer named on the I-765.
The student must report the change in employer to the DSO, and the DSO must update SEVIS accordingly.
Students may NOT be concurrently employed at a non-E-verify employer. While on a 17-month extension, the student is only allowed to be employed by employers who are registered with E-verify.
DSO Responsibilities for Students with "Cap Gap" Extension
DSOs will have the same responsibilities toward students with "cap gap" extensions.
SEVP and USCIS are looking into ways to notify a DSO that a student is an intended beneficiary of an H-1B petition and eligible for the "automatic extension."
Under the cap gap extension, the student may work for any employer, including (but not limited to):
o the same employer as s/he had under the prior OPT authorization,
o the employer who filed the H-1B petition for the 2009 fiscal year with an expected start date of 10/1/2008.
Documentation of Status/Authorization
Since neither the I-20 nor EAD card will reflect the "automatically extended" status and/or work authorization of F-1 students who are intended beneficiaries of pending H-1B, SEVP and USCIS are looking into documentation to facilitate travel, driver's license renewal, completion of the I-9, and other processes that require proof of status and work authorization. Most likely, SEVP will create a temporary solution with a notation on the student's I-20.
Unemployment Provisions
SEVP confirmed that the unemployment provisions of the regulation do not apply to any periods of unemployment before the effective date April 8, 2008. The 90 day "clock" starts on April 8, 2008.
Students should be advised that more than 90 days of unemployment after April 8, 2008 may affect eligibility for future benefits. If the student applies for a benefit and has more than 90 days of unemployment AFTER April 8, 2008, the benefit may be denied because of that unemployment. A student may provide documentation for the adjudicator to consider any extenuating circumstances. Note: SEVP stated that it is not looking to systematically put students out of status who were already on OPT prior to the effective date of April 8, 2008.
Unemployment provisions do NOT apply to students on pre-completion OPT who are maintaining full-time enrollment and are still pursuing their studies.
SEVP indicated that days of unemployment will be counted from either the start date requested (no later than 60 days after program end date) or the date the employment authorization is adjudicated, whichever is later. SEVP further indicated that ICE may consider tolling the days for those students whose EAD was approved but not received (e.g. lost in the mail). For example, if a student has to re-apply for a duplicate EAD because the first was lost in the mail, ICE may take into account the date the duplicate EAD was issued.
Regarding unpaid employment, SEVP said:
o For regular post-completion OPT, the employment does NOT have to paid employment. Therefore, a student who is self-employed (including performance majors with regular "gigs"), interning or volunteering in a position directly related to the academic field would be considered "employed" for the purposes of OPT employment.
o For the 17-month STEM extension, employment must be traditional paid employment.
Regulatory changes to F-1 Student Optional Practical Training (OPT) work
The Department of Homeland Security published a new regulation that significantly changes the OPT work benefit allowed to F-1 students in the U.S. While we are still awaiting clarification to the many questions this rule raises, a summary of the changes are listed below. We will be holding an Information / Update session for current students, on Thursday, April 10th, 2008, at 5:30pm in Dartmouth Hall, room 105. Please monitor our "International Immigration" blitz bulletin for details.
There are effectively five parts to the rule:
1) General changes to OPT application procedures and duration:
a. I-765 filing window: Under the current rule, the I-765 must be filed no later than the student's program end date, and it is not specified how soon before the program end date the application can be filed. Under the new rule effective April 8, 2008, a student will be able to file his or her I-765 up to 90 days prior to his or her program end date, and up to 60 days after his or her program end date.
b. Duration of employment authorization: Employment authorization will begin on the date requested or the date the employment authorization is adjudicated, whichever is later. Exception: The employment authorization period for the 17-month OPT extension begins on the day after the expiration of the initial post-completion OPT employment authorization, and ends 17 months later, regardless of the date the actual extension is approved.
2) OPT extension application is possible for STEM (Science, Technology, Engineering & Math) students employed by certain employers:
a. The 12 month limit on F-1 Optional Practical Training (OPT) will be extended by 17 months, for a total of 29 months, for certain STEM degree holders (Science, Technology, Engineering, Mathematics) in the following fields:
i. Actuarial Science.
ii. Computer Science Applications:
*(except Data Entry/Microcomputer Applications)
iii. Engineering.
iv. Engineering Technologies.
v. Biological and Biomedical Sciences.
vi. Mathematics and Statistics.
vii. Military Technologies.
viii. Physical Sciences.
ix. Science Technologies.
x. Medical Scientist (MS, PhD).
b. Other requirements for 17-month extension:
i. Student must be currently participating in a 12-month period of OPT, working for a U.S. employer in a job directly related to the student's major area of study.
ii. Student must have successfully completed a bachelor's, Master's, or Doctoral degree in a field on the DHS STEM Designated Degree Program List, from a SEVIS-certified college or university.
iii. Student must have a job offer from an employer registered with the E-Verify employment verification system. See also: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD AND http://www.uscis.gov/files/nativedocuments/E-Verify_Manual.pdf
iv. The revised form I-765 application form will have additional fields under a new #17 for:
1. Education level and major field of study. Note: the student will also need to submit a copy of the conferred degree with the application. However, the student will not need to include CIP code on the I-765 as the CIP code will be reflected on the student's new I-20 following the DSO's recommendation for extension.
2. Employer name as listed in E-Verify
3. E-Verify company identification number of employer (or E-Verify client company identification number of the employer's agent)
v. The student has not previously received a 17-month OPT extension after earning a STEM degree.
vi. Student will have to apply for the 17-month extension on Form I-765 with fee.
vii. Students who timely file an application for the 17-month OPT extension will be able to continue employment while the extension application is pending, until a final decision on the I-765 or for 180 days, whichever comes first.
viii. The employer must agree to report the termination or departure of the student to the DSO or through "any other means or process identified by DHS." An employer must consider a worker to have departed when the employer knows the student has left employment, or if the student has not reported for work for a period of 5 consecutive business days without the employer's consent.
3) H-1B cap-gap extension of D/S and work authorization until October 1:
a. Duration of status and work authorization will be extended for a student approved for OPT, who is the beneficiary of a timely-filed H-1B petition requesting an employment start date of October 1 of the following fiscal year. This would apply to all students on OPT, not just STEM students. The extension of duration of status and work authorization would automatically terminate upon the rejection, denial, or revocation of the H-1B petition filed on the student's behalf.
b. The conditions that must be met for this auto-extension of status and work authorization include:
i. The student is the beneficiary of an H-1B petition filed before the end of the student's lawful F-1 status;
ii. The H-1B petition requests a change of status with an effective date of October 1 of the following fiscal year;
iii. The F-1 student has not violated the terms and conditions of that status; and
iv. The H-1B petition is not rejected, denied or revoked.
c. Employers 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. Again, 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 in F-2 status.
4) Reporting Requirements while on OPT:
a. All students on OPT are required to report to the DSO:
i. any change of name or address, or
ii. any interruption of such employment
b. In addition, students with an approved 17-month OPT extension:
i. Must report to the student's DSO within 10 days of any change of:
1. legal name
2. residential or mailing address
3. employer name
4. employer address, and/or
5. loss of employment
c. Must make a validation report to the DSO every six months starting from the date the extension begins and ending when the student's F-1 status ends, the student changes educational levels at the same school, the student transfers to another school, or the 17-month OPT extension ends, whichever is first. The validation is a confirmation that the student's name and address, employer name and address, and/or loss of employment is current and accurate. The report is due to the DSO within 10 business days of each reporting date.
5) Limited Periods of Unemployment to Maintain Status: During post-completion OPT, F-1 status is dependent upon employment.
a. Students may not accrue an aggregate of more than 90 days of unemployment during any post-completion OPT carried out under the initial post-completion OPT authorization.
b. Students granted a 17-month OPT extension may not accrue an aggregate of more than 120 days of unemployment during the total 29 month OPT period.
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Effective January 1, 2008, the application fee for a U.S. non-immigrant visa will increase from $100 to $131. This increase allows the Department to recover the costs of security and other enhancements to the non-immigrant visa application process. This increase applies both to non-immigrant visas issued on machine-readable foils in passports and to border crossing cards issued to certain applicants in Mexico.
Applicants who paid the prior $100 application fee before January 1 will be processed only if they are scheduled and appear for a visa interview before January 31. Applicants who paid the prior $100 application fee and appear for visa interviews after January 31, 2008 must pay the difference -- $31 -- before they will be interviewed.
The Department is required by law to attempt to recover the cost of processing non-immigrant visas through the collection of the Machine-Readable Visa application fee. Because of new security-related costs, new information technology systems, and inflation, the $100 Machine-Readable Visa fee is lower than the actual cost of processing non-immigrant visas. In fact, the $100 fee was already lower than the cost of processing non-immigrant visas when the fee was reviewed as a part of the cost of service study in 2004. The Department has been absorbing the additional cost. We are now collecting 10 fingerprints from each applicant, and the cost charged by the FBI to review those fingerprints no longer allows us to do this. The application fee has increased twice since September 11, 2001, the last time in 2002.
Source: http://www.state.gov/r/pa/prs/ps/2007/dec/97384.htm
Source: http://www.nafsa.org
The Social Security Administration (SSA) updated their Program Operations Manual System (POMS) to provide new guidance on evidence requirements for F-1 and M-1 students applying for a Social Security Number (SSN). Under the new guidance at POMS RM 00203.470 section K.8:
Before November 2007, there was no employment start date restriction on applying for a SSN.
Effective November 1, 2007, the Department of Homeland Security (DHS) removed the requirement that certain H and L nonimmigrants returning to the United States following a trip abroad while their adjustment of status applications are pending must present an I-485 receipt notice to avoid having such applications deemed abandoned. Showing the I-485 receipt notice is no longer required. Other conditions of admissibility for such nonimmigrants remain unchanged. Please contact your Dartmouth College international advisor if you have questions about this.
