A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

Contact: 732-632-9888, http://www.1visa1.com/

Friday, November 26, 2021

Employment Authorization for Hong Kong F-1 Students with Economic Hardship




On November 26, 2021, the Department of Homeland Security published a notice authorizing employment authorization and reduced course load of study for certain Hong Kong students studying in the U.S. on F-1 visa status who are suffering from "severe economic hardship as a direct result of the emergent circumstances in Hong Kong." 

Under the new policy, Hong Kong residents who are lawful F-1 nonimmigrant students may request for employment authorization, work an increased number of hours while school is in session, and also reduce their regular course load without jeopardizing their F-1 student status. 

Who is eligible for EAD and related benefits?

The policy applies only to F-1 nonimmigrant students who meet all of the following conditions: 

(1) Are Hong Kong residents, regardless of country of birth;

(2) Were lawfully present in the United States in an F-1 nonimmigrant status on 11/26/2021;

(3) Are enrolled in an academic institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment of F-1 nonimmigrant students;

(4) Are maintaining F-1 nonimmigrant status; and

(5) Are experiencing severe economic hardship as a direct result of the emergent circumstances in Hong Kong.

What is the minimum course load requirement?

In order to qualify for employment authorization under this notice, Hong Kong students must maintain the minimum course load.  Undergraduate F-1 nonimmigrant students must remain registered for a minimum of six semester or quarter hours of instruction per academic term. A graduate-level F-1 nonimmigrant student must remain registered for a minimum of three semester or quarter hours of instruction per academic term.  These credit hours are half of the normal requirements for "full course of study." Of these credit hours, up to three (3) can be conducted online or in other distance learning format. However, individual schools may set their own minimum course load requirements, with which Hong Kong students must still comply.

I am a Hong Kong F-1 student who already has on-campus or off-campus employment authorization.  Can I also benefit from the suspension of F-1 status requirements under this notice?

Yes. For those Hong Kong resident students who already have employment authorization, they are also eligible for the reduced course load of study.  Such students may benefit without having to apply for a new Form I-766, Employment Authorization Document (EAD). They must make the request with their the designated school official (DSO). The DSO should enter the following statement in the remarks field of the student's Student and Exchange Visitor Information System (SEVIS) record, which the student's Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status, will reflect:

Approved for more than 20 hours per week of [DSO must insert “on-campus” or “off-campus,” depending upon the type of employment authorization the student already has] employment authorization and reduced course load under the Special Student Relief authorization from [DSO must insert the beginning date of the notice or the beginning date of the student's employment, whichever date is later] until [DSO must insert either the student's program end date, the current EAD expiration date (if the student is currently authorized for off-campus employment), or the end date of this notice, whichever date comes first].

Will F-2 dependents of an F-1 Hong Kong student be eligible to apply for employment authorization?

No.  F-2 spouses or minor children of a Hong Kong F-1 student will not be authorized to work in the United States.  

I am a Hong Kong student scheduled to enter the United States after 11/26/2021.   Will I be eligible to apply for employment authorization or take a reduced number of credit courses under this notice?  

No. The suspension of the applicability of the standard regulatory requirements only applies to certain F-1 nonimmigrant students who are already enrolled in a SEVIS school as of 11/26/2021.

I am a Hong Kong resident studying in the U.S. as an F-1 student, but I was not born in Hong Kong.  Will I be eligible for these benefits?

Yes,  Hong Kong residents, regardless of their place of birth, who are otherwise eligible for these benefits may apply for these benefits.

Does the new policy apply to elementary school, middle school, and high school students in F-1 status?

Yes. This notice applies to F-1 nonimmigrant students studying at approved private school in kindergarten through grade 12, public school in grades 9 through 12, and undergraduate and graduate institutions. Eligible F-1 nonimmigrant students enrolled in an elementary school, middle school, or high school may benefit from the suspension of the requirement that limits on-campus employment to 20 hours per week while school is in session. 

However, this notice does not reduce the required course load for F-1 students enrolled in private kindergarten through grade 12, or public school grades 9 through 12. Such students must still maintain the minimum number of hours of class attendance per week as required by the academic institution for normal progress toward graduation. 

How does an F-1 Hong Kong student who has on-campus employment authorization be authorized to work more than 20 hours per week while school is in session?

An eligible F-1 Hong Kong student may request authorization to work more than 20 hours per week while school is in session by making the request their school DSO. They must demonstrate severe economic hardship. The DSO should enter the following statement in the remarks field of the SEVIS student record, which will be reflected on the student's Form I-20:

Approved for more than 20 hours per week of on-campus employment and reduced course load, under the Special Student Relief authorization from [DSO must insert the beginning date of this notice or the beginning date of the student's employment, whichever date is later] until [DSO must insert the student's program end date or the end date of this notice, whichever date comes first].

The new policy suspended the application of the regulatory requirements regarding off-campus employment. What are the suspended requirements? 

  • That a student must have been in F-1 nonimmigrant status for one full academic year in order to be eligible for off-campus employment;
  • That an F-1 nonimmigrant student must demonstrate that acceptance of employment will not interfere with the student's carrying a full course of study;
  • That limits an F-1 nonimmigrant student's employment authorization to no more than 20 hours per week of off-campus employment while school is in session; and
  • That the student demonstrate that on-campus employment is unavailable or otherwise insufficient to meet the needs that have arisen as a result of the unforeseen circumstances.

How does an eligible F-1 nonimmigrant student obtain employment authorization for off-campus employment with a reduced course load under this notice?

An F-1 Hong Kong student must file the Form I-765, Application for Employment Authorization, with USCIS to apply for off-campus employment authorization based on severe economic hardship.  

The first step is to provide documentation to demonstrate the following to the DSO:

(1) This employment is necessary to avoid severe economic hardship; and

(2) The hardship is a direct result of the emergent circumstances in Hong Kong.

If the DSO determines that the F-1 Hong Kong student should receive such employment authorization, the DSO must recommend application approval to USCIS by entering the following statement in the remarks field of the student's SEVIS record, which will then appear on the student's Form I-20:

Recommended for off-campus employment authorization in excess of 20 hours per week and reduced course load under the Special Student Relief authorization from the date of the USCIS authorization noted on Form I-766 until [DSO must insert the program end date or the end date of this notice, whichever date comes first].

The F-1 Hong Kong student must then file the properly endorsed Form I-20 and Form I-765, along with other required documentation such as copy of their passport, I-94, application filing fee, and passport photos, with the USCIS. The F-1 nonimmigrant student may begin working off campus only upon receipt of the EAD from USCIS.  The application should be sent in an envelope which is clearly marked on the front of the envelope, bottom right-hand side, with the phrase “SPECIAL STUDENT RELIEF.” 

Can an F-1 nonimmigrant student apply for a DED-related EAD and for benefits under this notice at the same time?

Yes. An F-1 Hong Kong student may apply for a Deferred Enforced Departure (DED)-related EAD and also the benefits under the Special Student Relief notice.  


How does an F-1 student who has received a DED-related EAD then apply for authorization to take a reduced course load under this notice?

After obtaining a DED-related EAD, an F-1 Hong Kong student may demonstrate and provide documentation to the DSO of severe economic hardship as a direct result of the emergent circumstances in Hong Kong. The DSO will then verify and update the student's SEVIS record to enable the F-1 nonimmigrant student with DED to reduce their course load without any further action or application. No other EAD needs to be issued for the F-1 nonimmigrant student to have employment authorization.

Can a noncitizen who has been granted a DED-related EAD apply for reinstatement to F-1 nonimmigrant student status after the noncitizen's F-1 nonimmigrant student status has lapsed?

Yes. A Hong Kong student who worked on a DED-related EAD or dropped their course load before publication of this notice is considered having fallen out of F-1 nonimmigrant status. However, this student may apply for reinstatement of status if the student can demonstrate that he or she is eligible for restatement.  Reinstatement has specific legal requirements. 

How long will this new policy remain in effect?

This new policy is effective on November 26, 2021 through February 5, 2023.


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Friday, November 19, 2021

H-1B Visa Lottery Selection FY 2022 - the 3rd time!


USCIS announced today that it completed another around of random selection for FY 2022's H-1B visa program.  Apparently, there is still unused H-1B quota after 2 rounds of selection.  Employers and their repressentatives should log into their myuscis account to confirm if their cases have been selected.  Selected cases from this round must file their completed H-1B petitions between Nov. 22, 2021, and Feb. 23, 2022.


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

December 2021 Visa Bulletin: EB-2 India/China Advance

 



Charles Oppenheim of State Department's Visa Control office already predicted possible advances this month for EB2 India and China in December.  However, EB-3 India and China have no movement. 

The Filing Dates and Final Action Dates for EB-2 India and China have advanced as follows:

The Filing Dates -

  • EB-2 India:  Advancement of 6 months to 07/8/2013
  • EB-2 China: Advancement of 2 months to 04/01/2019

The Final Action Dates -

  • EB-2 India:  Advancement of 5 months to 5/01/2012
  • EB-2 China: Advancement of 1.5 months to 01/01/2019

The Final Action Date and Filing Date of "Other Workers" for China-Mainland have substantially advanced 2.5 years and 5 years respectively. 

The cutoff dates for Family visa categories have mostly stayed the same for most countries, except Mexico which has the 1.5 – 4 months of advancements.

USCIS announced that I-485 adjustment applicants must use the Dates for Filing chart (FD Chart) in both the family-based and employment-based cases, except the F2A category. F2A applicants can use the Final Action Date chart because final action dates are "current".  

Please see below for details.

AD: Dates for Final Action (Green Card Approval)           
FD: Dates for Filing Applications Only

      Family    

Other Countries

      China

India

Mexico

Philippines

F1

AD

12/01/2014

12/01/2014

12/01/2014

05/08/1999

03/01/2012

FD

05/15/2016

05/15/2016

05/15/2016

12/01/2000

04/22/2015

F2A

AD

      C

      C

      C

      C

      C

FD

09/01/2021

09/01/2021

09/01/2021

09/01/2021

09/01/2021

F2B

AD

09/22/2015

09/22/2015

09/22/2015

07/01/2000

10/22/2011

FD

09/22/2016

09/22/2016

09/22/2016

01/01/2001

10/01/2013

F3

AD

11/22/2008

11/22/2008

11/22/2008

07/15/1997

06/08/2002

FD

08/22/2009

08/22/2009

08/22/2009

09/08/2000

10/01/2003

F4

AD

03/22/2007

03/22/2007

09/15/2005

03/15/1999

08/22/2002

FD

10/01/2007

10/01/2007

01/01/2006

08/01/1999

02/01/2004

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens (about 23,400 per year)

4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)



Employment

Other 

Countries

China 

El Salvador

Guatemala

Honduras

India

Mexico

Philippines

EB1

AD

C

C

C

C

C

C

FD

C

C

C

C

C

C

EB2

AD

C

01/01/2019

C

5/01/2012

C

C

FD

C

04/01/2019

C

07/08/2013

C

C

EB3

AD

C

03/22/2018

C

01/15/2012

C

C

FD

C

04/01/2018

C

01/22/2012

C

C

Other Workers

AD

C

 03/01/2012  

C

01/15/2012

C

C

FD

C

05/01/2015

C

01/22/2012

C

C

EB4

AD

C

C

03/15/2019

C

 04/01/2020

C

FD

C

C

05/15/2019

C

C

C

EB5

AD

C

C

C

C

C

C

FD

C

12/15/2015

C

C

C

C

 

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)    

5th: Employment Creation (Investors) 

China-Mainland Born Employment-Based 5th Preference C5 & T5 Non-Regional Center Visa Categories Become "Current" for December."

 *(I5&R5 are still "Unavailable" in the December visa bulletin)


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.)