International students and their employers have reason to breathe a big sigh of relief.

Last month, USCIS revised two policy changes that would have dealt severe consequences for international students and those doing practical training and their employers: One policy changed when the clock began ticking on unlawful presence for international students and exchange visitors. The other eliminated the ability of STEM-OPT students to work at a third-party worksite.

Unlawful Presence

Back in May, USCIS issued a proposal that started the clock running on unlawful presence for international students and exchange visitors the day after their visas expired or they otherwise fell out of status—even if their reinstatement application is pending. Following a 30-day public comment period that yielded much criticism, USCIS stepped back some from that harsh policy proposal.

Now, students holding F-1 and  M-1 visas and exchange visitors holding J-1 visas who fall out of status but file a timely reinstatement application will have the clock stopped on their unlawful presence while their application is pending, according to the revised policy. This applies to their dependents as well. A timely reinstatement application means the student has been out of status for five months or less at the time of the submittal.

If USCIS denies the student’s reinstatement application, unlawful presence begins on the day after the denial. That means the student should leave the U.S. to avoid accruing unlawful presence days that would result in being barred from the U.S. for an extended period of time or indefinitely.

Severe Consequences

The U.S. doles out severe consequences to individuals who spend time in the U.S. unlawfully—or without a valid visa, green card, or other permission from immigration authorities. The severity of the consequence depends on how long the individual remains in the U.S. illegally:

• Three-year bar: An individual who accrues more than 180 days but less than one year of unlawful presence is barred for three years from re-entering the U.S.
• Ten-year bar: An individual who accrues one year or more of unlawful presence is barred for 10 years.
• Permanent bar: An individual who lived in the U.S. unlawfully for more than a year, left the U.S. or was deported, and then returned—or tried to return to the U.S. illegally—will be permanently barred from admission in the U.S.

Individuals may file for a provisional waiver from the three- or 10-year bar if they can show the barring would result in “extreme hardship.” A provisional waiver does not guarantee the individual will receive a visa to enter the U.S. lawfully.

Third-Party Worksites

Previously, DHS did not exclude employers from the STEM OPT program based on their business model, such as working at or with an employer’s client.

However, USCIS changed its policy without warning. Sometime in January, the following statement appeared on the USCIS website:

“Staffing and temporary agencies may seek to employ students under the STEM OPT program, but only if they will be the entity that provides the practical training experience to the student at its own place of business and they have a bona fide employer-employee relationship with the student.”

International students on F-1 visas can apply for Optional Practical Training (OPT), which allows them to get 12 months of work experience in their field of study either while earning their degree or after graduation. Under the STEM OPT program, International students can work an additional two years if they studied science, technology, engineering, or mathematics (STEM).

In an announcement released last week, USCIS reversed most of the January policy. That means international students can once again perform work at the offices of their employer’s clients.

Lawsuit Against DHS

Some observers believe a lawsuit filed in U.S. District Court in Dallas in July against the Department of Homeland Security (DHS) and its Secretary prompted the change.

Filed by ITServe Alliance, a trade association for IT companies, the lawsuit contends that DHS violated the federal Administrative Procedures Act (APA) earlier this year when it changed the STEM OPT requirements on the USCIS website. (DHS oversees USCIS.) The APA requires government agencies to give notice and allow public comments before creating or changing a rule or policy.

According to the lawsuit, DHS created criteria for whether a bonafide relationship exists between the STEM OPT student and employer. As such, a student’s STEM OPT is invalid if the student either:

• Receives training from anyone other than the employees or contractors who signed the STEM OPT form or
• Receives training at any location other than the employer’s place of business.

The lawsuit also contended that USCIS retroactively enforced these new rules. It asserted that USCIS informed STEM OPT students they had unlawfully accepted employment.

The USCIS clarification eliminated the location limitation, stating “STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business.” But it also states that employers must have and maintain “a bona fide employer-employee relationship with the student.” Neither the latest release from USCIS nor the USCIS website nor the STEM-OPT form defines a “bona fide employer-employee relationship.” 

We Can Help

The Alcorn Immigration Law team believes immigration leads to innovation. We can help students whether inside or outside the U.S. The team can help anyone file for visas, STEM OPT, reinstatement applications, or provisional waivers. We can also help employers qualify for STEM OPT student employees and STEM OPT reporting requirements. Contact us.