SEVIS Termination After Cap H-1B Consular Processing Approval?

Every year, many F-1 international students are named as beneficiaries in cap H-1B petitions to seek employment authorization. There are multiple ways H-1B status can be granted to an F-1 student. Most H-1B employers request that the F-1 student be granted a change of status from F-1 to H-1B. In this case, the student's status will be changed from F-1 to H-1B seamlessly. 

If the prospective H-1B worker is outside the U.S., employers will request the approval notice to be sent to an overseas U.S. consular office, so that the employee may apply for an H-1B visa to enter the U.S. to commerce H-1B employment. This process is known as “consular processing”. 

While consular processing usually is requested for employees who are outside the U.S., some F-1 students may choose this route even if they are staying in the U.S.  One reason for this decision is that they want to exhaust the OPT/STEM OPT period before starting the H-1B employment period.  

In this situation, the SEVIS record should continue to reflect the student's F-1 or OPT status. However, there are still numerous reports that students' F-1 SEVIS records got automatically terminated on October 1st, even though consular notification was requested and approved in their H-1B petition. Several of our clients also encountered this issue recently. 

For example, one of our clients was currently in the last semester of his academic program, and had a cap H-1B consular processing approval. He was surprised to find out from his school that his F-1 SEVIS record was terminated on October 1st, 2023. Since his H-1B status was not yet effective, he suddenly became out of immigration status. Another client, who recently received her OPT work authorization and opted for consular processing, also received notice that her F-1 status would be terminated because of the H-1B approval. This means she would lose the unused portion of her OPT employment authorization.

If this happens, an F-1 student should contact their school DSO and/or program advisor immediately, and request the officer to perform a "data fix" to the SEVIS record to correct such mistakes in a timely manner. School DSOs should submit a data fix ticket to the SEVIS helpdesk for the correction. An I-797 approval notice reflecting the consular notification would usually be required in a data fix request. The specific language they should be looking for on the notice would be "(t)he above petition has been approved, and notification has been sent to the listed consulate". 

While the erroneous F-1 termination could be frustrating and terrifying, F-1 students should stay calm and take immediate action. Otherwise, their status and work authorization will be jeopardized, and a formal F-1 status reinstatement, which is more complicated and time-consuming, would be required. When in doubt, be sure to reach out to an experienced immigration attorney for advice and assistance.

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

Indian international students outnumbered Chinese students for the first time

 

For the first time since 2009, India has surpassed China in terms of the number of students studying in the United States. According to DHS statistics, as of September 2023, there were 320,000 Indian students studying in America, while the number of active Chinese student was 254,000.

For many years, China was the dominant source of F-1 international students, representing roughly one-third of foreign student populations. Covid-19 essentially halted the issuance of F-1 visas to foreign students for many months in 2021, including those from China.  In 2021, the number of Indian students increased by 12% while the number of Chinese students dropped 8%.  

As the U.S. gradually relaxed the entry and vaccination requirements for foreign students in 2022, the total number of active F-1 and M1 students rebounded to 1,362,157, representing a 10% increase from 2021.

Although the U.S. gradually reopened in 2022, China was still holding on to its "zero-Covid" policy. Even so, China still had more students studying in the U.S. than India that year.  The number of Chinese and Indian students studying in the U.S. were respectively 324,196 and 297,151.  However, the tide has finally turned in 2023.  There are several reasons for this reversal.

The rise of India's middle-class population has propelled the growth in foreign studies.  Recent reports show that India's middle class has increased five-fold in the last nine years.  Education is highly valued by Indian parents, just like their counterparts in China.  It is only natural that they want to send their children to study in the U.S., where many world-class educational institutions are located. 

For Chinese students, they were initially deterred by the anti-Chinese rhetoric during the pandemic, which resulted in a huge surge in Asian-hate crimes. A Trump-era policy of refusing visas to Chinese students and scholars with military ties has also contributed to the decline of the number of Chinese students.  The struggling Chinese economy also makes it more difficult for middle-class families to send their children abroad. 

Chinese students also have other options for education, such as U.K., Canada, Australia, New Zealand, etc., other than America.  If they sense that they are not welcome here, they are less inclined to apply for American schools. The limited number of work visas (H-1B) after graduation has also forced some Chinese students to depart. 

This is not to say that Chinese students have stopped coming to the U.S.  For K-12 education, China remains the number one country, sending 13,565 students to the U.S. in 2022, representing 25.3% (13,565) of all international students, followed by South Korea, which accounted for 7.6% (4,076) of K-12 foreign students.  

The economic benefits of international students are significant to the United States. According to the National Foundation for American Policy, in just the 2021/22 academic year, college-level international students contributed $33.8 billion to the U.S. economy and supported more than 335,000 jobs. Some of these students, like Elon Musk, may go on to found multi-billion companies that will bring immeasurable benefits to American society. 

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

December 2023 Visa Bulletin: Mild Advancement in China EB2 & EB3

In the December Visa Bulletin, Family-based categories mostly stay the same. China's EB-2 & EB-3 advance 21 days. Visa numbers for certain religious workers becomes “Unavailable” in December. 

USCIS will honor the dates in the Filing Date Chart for filing of both employment-based and family-based I-485 applications.

AD: Dates for Final Action (Green Card Approval)  

FD: Dates for Filing Applications Only

Family-based		Other Countries	China	India	Mexico	Philippines
F1	AD	01/01/2015	01/01/2015	01/01/2015	05/01/2001	03/01/2012
	FD	09/01/2017	09/01/2017	09/01/2017	04/01/2005	04/22/2015
F2A	AD	02/08/2019	02/08/2019	02/08/2019	02/01/2019	02/08/2019
	FD	09/01/2023	09/01/2023	09/01/2023	09/01/2023	09/01/2023
F2B	AD	09/22/2015	09/22/2015	09/22/2015	05/01/2002	10/22/2011
	FD	01/01/2017	01/01/2017	01/01/2017	08/01/2004	10/01/2013
F3	AD	01/08/2009	01/08/2009	01/08/2009	03/22/1998	06/08/2002
	FD	03/01/2010	03/01/2010	03/01/2010	06/15/2001	11/08/2003
F4	AD	04/22/2007	04/22/2007	10/08/2005	09/15/2000	08/22/2002
	FD	03/01/2008	03/01/2008	02/22/2006	04/15/2001	04/22/2004

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	India	Mexico	Philippines
EB1	AD	C	02/15/2022	01/01/2017	C	C
	FD	C	08/01/2022	07/01/2019	C	C
EB2	AD	07/15/2022	10/22/2019	01/01/2012	07/15/2022	07/15/2022
	FD	01/01/2023	01/01/2020	05/15/2012	01/01/2023	01/01/2023
EB3	AD	12/01/2021	01/22/2020	05/01/2012	12/01/2021	12/01/2021
	FD	02/01/2023	09/01/2020	08/01/2012	02/01/2023	01/01/2023
Other Workers	AD	08/01/2020	01/01/2016	05/01/2012	08/01/2020	05/01/2020
	FD	12/15/2020	06/01/2017	08/01/2012	12/15/2020	05/15/2020
EB4*	AD	01/01/2019	01/01/2019	01/01/2019	01/01/2019	01/01/2019
	FD	03/01/2019	03/01/2019	03/01/2019	03/01/2019	03/01/2019
EB5	AD	C	10/01/2015*	12/15/2018*	C	C
	FD	C	01/01/2017	04/01/2022	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)

*Certain Religious Workers final action date visa numbers are "Unavailable".
5th: Employment Creation (Investors)

*China and India EB-5 visa numbers for rural, high unemployment & infrastructure areas/projects are current.

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

Former President Trump Vows to Carry Out Massive Deportation if Re-elected

 

The 2024 United States presidential election will be held one year from now.  As the forerunner of the Republican presidential nomination, former President Donald Trump has shared his agenda for immigration policy.  Trump made some radical promises to conservative voters that have even surpassed himself.  The following are some of Trump's immigration policies as reported by the media recently:

• Conduct a "massive deportation" to remove hundreds of thousands of illegal immigrants.

• Sign an executive order to end birthright citizenship to children whose parents are not American citizens or legal residents.

• Continue to build and extend the border wall on the southern border.

• Limit political asylum to foreigners, and require them to wait for their hearings in Mexico.

• Give the National Guard and state officials the authority to arrest and deport immigrants living in the U.S. illegally. 

• Deny legal immigration based on the applicants' ideological beliefs, such as Marxists and communists.

• Halt refugee admissions from the Middle East.

• Expand the travel ban to bar the entry of citizens from certain countries, most of them majority Muslim or African.

• Revive Title 42 pandemic-era policy to expel migrants on public health grounds, including unaccompanied children.

As usual, Trump's rhetoric is characterized by intimidation and high-handed tactics.  However, many of Trump's bold promises may be appealing to his supporters but will not likely materialize because of legal, operational and humanitarian challenges. For example, the birthright citizenship has been guaranteed by the U.S. Constitution for decades.  To amend the Constitution would require a two-thirds majority vote in both Chambers of the Congress or by a constitutional convention called for by two-thirds of the State legislatures, both of which are extremely unlikely.  

Deporting hundreds of thousands of individuals would require tremendous amount of resources that our government simply does not have now.  Many illegal immigrants have already built a life here, and deporting them would mean taking away somebody's husband, wife, father, mother, etc. The humanitarian concerns and social issues involved would be difficult to justify.  Legally, his policies will certainly face tough legal challenges in court.

Immigration will likely continue to be a hot topic in the presidential debates. Despite the polarized positions of the political parties, most politicians agree that immigration reform is overdue.  For instance, we need a better system to attract and retain talent from other countries. It is hoped that these debates will result in a comprehensive immigration plan that is both fair and humane. 

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

Change of Employer in the middle of Green Card Application Process

Phone by Anna-Tarazevich

By Paul Szeto Esq.

Change of jobs is quite common in today's job market.  One may decide or be forced to change jobs due to company down-sizing, reorganizations, better opportunities, family situations, etc. However, for foreign workers in the United States, they have more to consider in deciding whether to change employers or not.  

In the majority of cases, foreign nationals require sponsorship by a U.S. employer in order to be able to work legally in the country.  For example, a professional worker who works under the H-1B visa program requires a separate employer application for each position that they engage in. The situation becomes more complicated if they are in the middle of their green card application process.  Would the employer cancel the green card application after their departure? Can a foreign worker somehow transfer the pending case to a new employer? These are critical questions for foreign workers to consider.

The two main applications involved are the I-140 visa petition filed by the employer and the I-485 adjustment application filed by the applicant.  A job-changing employee's options largely depend on the status of each or both of these applications in the green card application process.  

The best case scenario for a foreign worker is that they have properly submitted their I-485 application, and it has been pending for at least 180 days.  In this case, the foreign worker is allowed to "port"or move the whole green card application to a new employer under section 204(j) of the INA, provided certain technical requirements are met.  The foreign worker should be able to continue with their application unless the I-140 petition was somehow subsequently revoked based on substantive reasons.  What if the I-485 was pending for less than 180 days?  It would then depend on the employer actions.  If the I-140 is ultimately approved and remains approved for 180 days, the case can go on as above. If the I-140 was withdrawn or cancelled by the employer within 180 days, then the foreign worker would not derive any benefits at all and must restart their application again.

Sometimes, an employee has to change jobs with only a pending or approved I-140 petition. In this situation, porting of the green card application to a new employer would not be possible.  However, if the I-140 petition filed by the initial employer has been approved and remains approved for at least 180 days, the employee can generally be able to keep the priority date for future applications.  Still, the ability to be able to keep one's priority date is a huge advantage, given the long waiting times for immigrant visas.  A new employer must restart the application process again, typically from PERM labor application, but the employee would be able to keep their “space in line,” so to speak.  If an employer decides to cancel or withdraw the I-140 petition after 180 days, it would not make a difference.  

Due to visa shortage, many foreign workers must wait years before they can receive their employment-based green cards.  During this lengthy application process, job changes are sometimes inevitable.  Foreign workers should always be on the lookout for possible employment changes. Careful planning and correct legal information would enable them to make the transition safely. 

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

DHS Proposal to Modernize H-1B Program: Self-Petitions Allowed

 

On 10/23/2023, the Department of Homeland Security (DHS) unveiled a significant rule titled "Modernizing H–1B Requirements, Providing Flexibility in the F–1 Program, and Program Improvements Affecting Other Non-immigrant Workers." This rule, with potential far-reaching implications, proposes a host of changes to the H-1B visa program, which will be the focus of this article. 

H-1B cap lottery:  Each beneficiary will be considered a unique entry for the visa lottery, regardless of the number of registrations that have been entered on their behalf.  Registrations by related entities are prohibited.

Revised definition of an H-1B employer:  DHS abandons the common-law definition of an employer. Instead, a petitioner-employer must have a bona fide job offer for the beneficiary to work within the U.S., a legal presence and is amenable to service of process in the U.S.  

Codified employer-employee relationship: A petitioner needs to only prove that it has the authority to hire, pay, fire, supervise, or otherwise control the work of the beneficiary.

Bona-fide offer of employment: Contracts, agreements, work orders, etc., can be requested to prove the existence of a bona-fide job offer.  Bona-fide job offers may include ‘‘telework, remote work, or other off-site work within the U.S.’’

Self-petitions Allowed:  The rule allows a beneficiary to own or control the petitioning entity.  The beneficiary may spend time directing and managing the operations of the entity, as long as the beneficiary will perform specialty occupation duties a majority of the time. However, DHS will only approve the first two petitions filed by such beneficiary-owner for a maximum of 18 months.  

Definition of specialty occupation clarified: An occupation “normally” requiring a bachelor’s degree doesn’t mean that it must “always” require a bachelor’s degree.  Further, a broad range of degrees can be required for a specialty occupation, so long as the subjects of these degrees are related to the specialty occupation.

Third party placement: If an employee is placed to work at a third party client's organizational hierarchy, the job duties of the third party client will be used to determine whether the position is a specialty occupation. 

Deference to prior approvals:  The rule will codify the policy of giving deference to prior adjudications of H-1B and other non-immigrant petitions, if there have been no material changes in facts and circumstances. 

Cap-gap extension extended: The rule proposes to extend the current gap-gap extension end date from October 1 to April 1 of the following year, while F-1 students are waiting for their H-1B petitions to be adjudicated.  

Evidence of maintenance of status:  H-1B petition must be filed with proof of the beneficiary's immigration status, including copies of recent pay stubs and W-2 annual pay statements. 

Redefining “nonprofit research organization” and “governmental research organization”:  The rule proposes to replace “primarily engaged” with “a fundamental activity of”.   Hence, a nonprofit entity that conducts research as a fundamental activity but is not primarily engaged in research can also meet the definition of a nonprofit research entity. 

The public has 60 days to comment on the proposed rule, and it will take longer for DHS to consider these comments and finalize the rule.  However, DHS has indicated that H-1B cap anti-fraud provisions are a priority, so those provisions may be finalized first before the 2024 H-1B lottery. Stay tuned for further details.

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

November 2023 Visa Bulletin: USCIS Honors Employment Filing Date Chart

The November Visa Bulletin is rather static after last month's significant advancements in Employment-based categories.  USCIS will honor the dates in the Filing Date Chart for filing of employment-based I-485 applications.

AD: Dates for Final Action (Green Card Approval)  

FD: Dates for Filing Applications Only

Family-based		Other Countries	China	India	Mexico	Philippines
F1	AD	01/01/2015	01/01/2015	01/01/2015	05/01/2001	03/01/2012
	FD	09/01/2017	09/01/2017	09/01/2017	04/01/2005	04/22/2015
F2A	AD	02/08/2019	02/08/2019	02/08/2019	02/01/2019	02/08/2019
	FD	09/01/2023	09/01/2023	09/01/2023	09/01/2023	09/01/2023
F2B	AD	09/22/2015	09/22/2015	09/22/2015	05/01/2002	10/22/2011
	FD	01/01/2017	01/01/2017	01/01/2017	08/01/2004	10/01/2013
F3	AD	01/08/2009	01/08/2009	01/08/2009	03/22/1998	06/08/2002
	FD	03/01/2010	03/01/2010	03/01/2010	06/15/2001	11/08/2003
F4	AD	04/22/2007	04/22/2007	10/08/2005	09/15/2000	08/22/2002
	FD	03/01/2008	03/01/2008	02/22/2006	04/15/2001	04/22/2004

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	India	Mexico	Philippines
EB1	AD	C	02/15/2022	01/01/2017	C	C
	FD	C	08/01/2022	07/01/2019	C	C
EB2	AD	07/15/2022	10/01/2019	01/01/2012	07/15/2022	07/15/2022
	FD	01/01/2023	01/01/2020	05/15/2012	01/01/2023	01/01/2023
EB3	AD	12/01/2021	01/01/2020	05/01/2012	12/01/2021	12/01/2021
	FD	02/01/2023	09/01/2020	08/01/2012	02/01/2023	01/01/2023
Other Workers	AD	08/01/2020	01/01/2016	05/01/2012	08/01/2020	05/01/2020
	FD	12/15/2020	06/01/2017	08/01/2012	12/15/2020	05/15/2020
EB4*	AD	01/01/2019	01/01/2019	01/01/2019	01/01/2019	01/01/2019
	FD	03/01/2019	03/01/2019	03/01/2019	03/01/2019	03/01/2019
EB5	AD	C	10/01/2015*	12/15/2018*	C	C
	FD	C	01/01/2017	04/01/2022	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 and India EB-5 visa numbers for rural, high unemployment & infrastructure areas/projects are current.

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