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Grassley Concerned with Proposal to Expand Employment Benefits to Foreign Students

By Bill at July 20, 2015 20:34
Filed Under: Immigration News
Jun 08, 2015

WASHINGTON --- Senate Judiciary Committee Chairman Chuck Grassley of Iowa is expressing concern that the Obama administration is proposing expanding employment benefits to foreign students in the Optional Practical Training program despite the fact that the Government Accountability Office says it’s susceptible to abuse and requires additional oversight.

In a letter to Department of Homeland Security Secretary Jeh Johnson, Grassley wrote, “The proposed new regulations, while still being internally discussed, are irresponsible and dangerous considering the Government Accountability Office report issued in March 2014 finding that the program was full of inefficiencies, susceptible to fraud, and that the Department was not adequately overseeing it.”

Currently, foreign students are authorized to work for a 12-month period after graduation from a U.S. degree program.  Foreign students graduating from Science, Technology, Engineering and Math (STEM) degree programs are granted an additional 17 months of employment.  The legality of the STEM Optional Practical Training extension regulations is currently being challenged in federal court.  
    
The Department’s proposal would increase the extension period from 17 to 24 months and allow students to benefit from such an extension twice in their academic career.  A student who graduates from a STEM bachelor’s degree program could work for up to three years after graduation in student status, then go on to get a master’s degree and work for three more years after that.  Thus, under the proposed new regulation, a foreign student could work in the United States post-graduation on a student visa for a total of up to six years, completely outside of the nonimmigrant employment-based visa programs, and their associated worker protections, established by Congress.

Grassley had requested the Government Accountability Office report after hearing concerns that employers were targeting for recruitment foreign students with Optional Practical Training and learning that there was an atypical upward trend in participation.  The report is a follow-on to previous studies about the Student Exchange Visitor Program, which the Government Accountability Office has evaluated and found serious flaws.

The report found that foreign students, sometimes aided by school officials, were abusing the Optional Practical Training program to acquire unauthorized employment in the United States.  In addition, the report said that the federal government’s inability to track the foreign students in the program resulted in a national security risk.  

Grassley wrote, “Instead of addressing the weaknesses of the OPT program, or addressing the legitimate criticisms of the OPT-STEM program raised in the Washington Tech Alliance lawsuit, it appears the agency is intent on doubling down on the misguided policies that triggered the GAO report and lawsuit in the first place.”

Here’s a copy of the letter to Johnson.  A copy of the signed version can be found here.  Grassley’s March 7, 2014, letter to Johnson can be found here.

 

June 8, 2015


Via Electronic Transmission

The Honorable Jeh Johnson
Secretary
U.S. Department of Homeland Security
Washington, DC 20528

Dear Secretary Johnson:

On May 28, 2015, Senate Judiciary Committee staff received a briefing from officials of U.S. Immigration and Customs Enforcement (ICE) about proposed rules affecting foreign students.  I’m concerned about the Department’s plans to expand the Optional Practical Training (OPT) program, and urge you to reconsider expanding the program without adding adequate controls and safeguards.  

Currently, Department regulations authorize an F-1 student who has attended an ICE-certified college, university, conservatory, or seminary on a full-time basis for at least one academic year to receive up to 12 months of employment authorization per education level.   In 2008, the Department published regulations authorizing a 17-month extension of the OPT period for foreign graduates of U.S. degree programs in a science, technology, engineering, or mathematical (STEM) discipline.   The 2008 OPT-STEM regulation is currently the subject of a lawsuit by an association of American tech workers challenging its legality.

I understand, based on the May 28 briefing, that the Department is moving forward with new regulations on OPT—

(1)    allowing foreign students with degrees in STEM fields to receive up to two 24-month extensions beyond the original 12-month period provided under OPT regulations, for a total of up to six years of post-graduation employment in student status; and
(2)    authorizing foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

The proposed new regulations, while still being internally discussed, are irresponsible and dangerous considering the Government Accountability Office (GAO) report issued in March 2014 finding that the program was full of inefficiencies, susceptible to fraud, and that the Department was not adequately overseeing it.

Putting aside the legality of the OPT program, which I have questioned, I am greatly troubled by the proposal to lengthen to a full two years the OPT-STEM extension period.  Doing that would authorize foreign STEM students to remain working in the United States after graduation, potentially for a total of up to six years, completely outside of the nonimmigrant employment-based visa programs, and their associated worker protections, established by Congress.  As the plaintiffs in the Washington Tech Alliance lawsuit  state in their complaint: “DHS’s OPT regulations deliberately circumvent the statutory caps on H-1B visas ... by allowing aliens who are unable to get an H-1B visa to remain in the United States and work on an F-1 student visa instead.”   By increasing the total amount of time a foreign student may work in OPT after each degree to 3 years  – the same amount of time that an H-1B visa would be valid – there is little doubt  that the Administration has administratively established  a de facto shadow H-1B program, in violation of Congressional intent.  OPT is meant to be a temporary training program, not as a bridge to a longer-term work visa or a way for employers to hire cheaper foreign labor in lieu of Americans or foreign workers in visa programs with prevailing wage requirements.  

The GAO found numerous problems with the OPT program.  Their report found that foreign students, sometimes with help of designated school officials, were abusing the program to acquire unauthorized work.  It also found that the Department was not adequately overseeing the program and did not have adequate monitoring mechanisms in place to ensure program compliance.  In fact, it found that the Department was not tracking vital information that was necessary to ensure schools and students were following ICE regulations, such as accruing too much unemployment, completing the program within a certain amount of time, or ensuring students were engaging in work that was in their field of study.  

The report also exposed a major national security problem in that the Department does not know where tens of thousands of foreign students are living and working in the country.  The GAO said that “ICE cannot fully ensure foreign students working under optional practical training are maintaining their legal status in the United States.”    The GAO report also found that ICE does not consistently collect information as to the type and timing of foreign students’ employment, thus leaving the agency in the dark as to where these students are and for whom they might be working.  

Instead of addressing the weaknesses of the OPT program, or addressing the legitimate criticisms of the OPT-STEM program raised in the Washington Tech Alliance lawsuit, it appears the agency is intent on doubling down on the misguided policies that triggered the GAO report and lawsuit in the first place.  

After the GAO issued its report in 2014, I wrote to you and urged you to consider issuing a moratorium on OPT approvals until the program was secured and students could be located.  I also asked that the Department swiftly move to implement the GAO’s recommendations.  The Director of U.S. Citizenship and Immigration Services, Alejandro Mayorkas, responded on your behalf to my letter.  He said the Department concurred with the recommendations and was working on them.  I would like to know the status of each GAO recommendation, whether they have been fully implemented, and if not, why not.  I also strongly urge the Department to undertake additional reforms to increase oversight and improve compliance monitoring beyond what the GAO has recommended.  I want to know what specific actions the Department will take to locate students, rein in fraud and abuse, and ensure compliance.

While I realize the agency is also considering requiring certifications that the employers will not displace U.S. workers, there does not seem to be any certification contemplated that the employer has recruited or tried to find U.S. workers who may be at least equally qualified as the foreign students.  Nor will the regulations, as proposed, require substantive wage requirements in order to ensure that employers are not exploiting foreign students and thereby driving wages down for U.S. workers.  
    
I urge you to reconsider the proposed rule for STEM students, and at a minimum, address the underlying issues with the standard OPT program.  If you do not have the appetite to cease the program altogether, as I have suggested in the past, I would encourage the Department to, at a minimum: 1) increase oversight and monitoring compliance by schools as well as foreign students and those who employ them; 2) ensure that employment is secured before any OPT is granted; 3) ensure that foreign students report any changes in employment to designated school officials and be held accountable if they do not; 4) ensure that designated school officials are notifying the Department about the whereabouts of their students, including the employer’s name and location and be held accountable if they do not; 5) require that employers who hire any foreign student with OPT be enrolled in E-Verify; 6) require employers to pay a reasonable wage to foreign students with OPT; 7) require employers of students with OPT to pay a fee equal to the wage savings from not having to pay FICA payroll taxes for OPT workers, in order to level the playing field between OPT and American workers; 8) more closely bind OPT training to the student’s academic course of study; 9) establish avenues for foreign students to report employer abuse; and 10) place a numerical cap on the number of foreign students who may receive a work authorization.

In addition to providing me with updates on the GAO recommendations and any other oversight measures undertaken, I request your response to each of the ten recommendations I propose above and why the Department would not include them in the regulations being considered.  

Please send a response to my questions and concerns no later than June 22, 2015.  I appreciate the consideration of your views and look forward to your reply.  

Sincerely,

 

Charles E. Grassley
Chairman
Senate Judiciary Committee

 

Student Visa, Indirect Approach to Work in USA

By Bill at May 06, 2011 00:15
Filed Under:

In strategy, the longest way round is often the shortest way there. -- B. H. Liddell Hart. 

You want to work and live in US. But you could not find American employers who are willing to hire you from thousands of miles away. Or you are already in United States, but your visa is going to expire before you can find a work visa sponsor. 

Should you give up? Student Visa(F Visa or M Visa) can be your indirect approach to work visa. 

There are over 9 thousand schools in United States that have been certified to issue I-20 Form for student visa, from Harvard University in Boston to language training center in Jersey City. In fiscal year 2009, United States received 477,782 applications for F1 Student visa and approved 331,208 of them, a success rate of 70%. 

With student visa, you can work on and off campus. You will get 12 - 29 months of practical training period after graduation. Not to mention that American employers will be much more likely to hire you and sponsor your green card if you have a US degree...... 

Please search or browse the schools that can assist you in getting student visa. Following resources will also be helpful in your job hunting. 

  1. H1B Visa Sponsors
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Tax Deadline is very near!

By Bill at April 06, 2011 07:01
Filed Under:

April 18th is just less than 15 days away. US Tax filing is a mandatory requirement, non filing or delays can cause significant penalties and interest. Act fast if you have not filed yet, and get your tax obligation for 2010 taken care of. If you didn’t get a chance to think about your tax return, it may be prudent to file an extension for your 2010 to avoid any late filing penalties. Tax professionals at MyTaxFiler will gladly file your extension at no charge, if you send them an e-mail to tax@mytaxfiler.com with subject “File Extension”, and a copy of your 2009 tax return. 

IRS refund this year has averaged $ 3000, so you may be missing out by filing a return. Read this article from IRS to learn more about 2010 Tax refunds. 

2010 Tax Filing deadlines

  • April 18th 2011 – Individual Tax Return
  • April 18th 2011 – Last day to make IRA/SEP contributions
  • June 30th 2011 – Foreign Bank Account Reporting Form
  • August 30th 2011 – Last date for 2nd Foreign bank Disclosure Amnesty program
  • October 17th 2011 – Final deadline to file individual tax returns (with extension)


Foreign Bank Account Reporting Form (FBAR) 

If you own or have authority over a foreign financial account, including a bank account, brokerage account, mutual fund, unit trust, or other types of financial accounts, you may be required to report the account yearly to the Internal Revenue Service. Read More 

Global Value Add, Inc – MyTaxFiler have been assisting our members in planning and filing their tax returns at discounted rates. They have experts on board who can assist J1, H1, L1, F1 and Opt Visa holders. 

Below is their information if you wish to contact with their tax professionals. 

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Good Read:

  • Tips for Choosing a Tax Preparer – Click here
  • Important tax law changes in 2010 – Click here
  • How to keep yourself away from IRS Audits – Click here


Extension of OPT and F1 under H1B Cap-Gap

By Bill at April 05, 2011 21:59
Filed Under: Immigration News

Washington April 1, 2011: USCIS released Q&A on Extension of OPT and F-1 Status under the H-1B Cap-Gap Regulations

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?
A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students. 

Q2. How does “Cap-Gap” Occur?
A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training.  As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1.  If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.  Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?  
A3. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension. 

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.
.
Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States. 

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing. 

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status? 
A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1. 

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted.  The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.  

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?
A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation.  The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period.  Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval.  In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?
A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf?  It appears that F-1 status would be extended, but would OPT also be extended?
A7. That is correct.  F-1 students who have entered the 60-day grace period are not employment-authorized.  Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended). 

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?
A8:  Yes.  The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?
A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization.  F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?
A10. Yes.  However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date.  However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date.  What should the student do to correct this?
A11. The student should contact their DSO.  The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk. 

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?
A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

  • The student finds employment appropriate to his or her OPT
  • The period of OPT is unexpired; and
  • The DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?
A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date.  Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.

Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?
A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.

Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?
A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

 

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