A Harsh Crackdown: Hundreds of F-1 Student Visas Revoked, SEVIS Records Terminated

In an unprecedented move, the U.S. government has initiated mass revocations of F-1 student visas and terminations of corresponding SEVIS records, leaving hundreds of international students in legal limbo. While international student enforcement has historically been minimal, recent shifts signal a new, aggressive approach with far-reaching consequences for students, universities, and the broader U.S. economy.

What’s Happening?

Late last month, Secretary of State Marco Rubio announced that over 300 student visas had been revoked, citing national security concerns and alleged foreign policy risks. Reports now suggest that hundreds more F-1 students have been affected, with ICE (Immigration and Customs Enforcement) simultaneously terminating their SEVIS records, effectively stripping them of their legal status in the U.S.  These enforcement actions are sweeping and largely opaque, often involving students with no or minor criminal history—or cases where charges are still pending or were dismissed.

Visa Revocation and SEVIS Termination

The U.S. State Department has discretionary authority to grant or revoke student visas.  However, historically, it is very rare that the government will revoke an F-1 visa when the student is already present in the United States.  A visa works like an admission ticket. Revocation of a visa only disallows the student from using it to return to the U.S.  Without other violations, foreign students are generally allowed to maintain their F-1 status and continue their studies in the U.S. until completion. 

However, when a student's SEVIS record is terminated, there are serious and immediate consequences.  They immediately lose their F-1 status and become ineligible to work (even on OPT). Further, their dependents' F-2 status are also terminated.

Reasons for Termination

Many students received no advance notice or explanation before their status is terminated. Termination notations like “otherwise failing to maintain status” were used vaguely and without context, preventing students from defending themselves.  Some students have some violations such as disorderly conduct, DUI, etc. Others have pending or dismissed cases.  Yet, some other students believe that they have no prior violations of the law.  

Students' Options are Limited

A student whose SEVIS is terminated faces immediate risk of deportation.  In fact, the government often requests such student to use an app to facilitate self-deportation.   However, leaving the country means that the student may not be able to finish their studies or return to the U.S. any time soon.  Another option is to try to apply for reinstatement of status.  The advantage is that they should be allowed to continue with their studies after filing of the reinstatement request - even this is questionable.  Students may continue with their study, but may not work or participate in OPT programs.  Another issue is that processing time of reinstatement cases is extremely long.  The government will also likely to deny them under the current policy. 

Another option for foreign students is to remain in the U.S. and defend themselves in removal proceedings.  However, the process could be long, and they would not be able to continue with their study or work while the case is pending. Worse, they could be detained by ICE during the legal process.  Some students proactively file lawsuits in federal court to reinstate their F-1 status and enjoin the government from detaining them.  Students may follow suit if these lawsuits are successful. 

In general, students should maintain a record of all communications with their DSO, ICE, and USCIS. Also keep record of any criminal violations including complaints, case dispositions, fines paid, etc. Evidence of compliance with visa conditions will be crucial.

Final Thoughts

The U.S. has long benefited from attracting top global talent through its educational system. We have benefited from them economically and also intellectually. This sudden crackdown on F-1 students not only disrupts the studies of many international students but also damages the country's reputation as a destination for international education and innovation. As we are now in a tough time at the moment, it is more important than ever for international students to take precautions to protect their status in the U.S. Foreign nationals, especially international students, should take steps to prepare for the worst and come up with contingency plans.  It is also prudent to seek advice from an experienced immigration counsel early on before one's visa is revoked.

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

How to Prepare for Immigration Interviews

Attending interviews is a nerve-wrecking event.  Going before an immigration or visa officer to explain yourself is even more difficult.  You've filed applications after applications, with tons of documents, certificates, photographs and other evidence. And now it is time to face the moment of truth. This single meeting with an immigration or visa officer will decide whether you can get your green card or stay in the United States.  However, with proper preparation and mental readiness, you can survive the interview and ultimately obtain your green card or visa.

Preparation is the key to have a successful immigration interview. After you have received the interview appointment notice, you should start preparing for it immediately.  Preparation involves three main aspects:  documentation, answering questions and logistics. 

Collect all required documents as early as possible

First, you must collect all required documents well in advance.  Some documents such as renewal passports may need extra time to obtain. There are two types of documents, original and copies.  For most immigration interviews such as adjustment of status, you must bring originals of your ID and civil documents such as passports, birth certificates, marriage certificate, divorce judgment, driver's license, green card and naturalization certificate (of the sponsors), EAD cards, etc.  The immigration officer needs to review these originals to make sure that they match the copies that you have submitted.  Copies of other documents are also required to prove your immigration status (I-94, visa stamps, status approval notices such as I-797s, etc.) and employment status (job letters, pay and W-2 statements).  

For employment-based petitions, you must also provide educational and employment documents to prove your eligibility and also a bona fide job offer.  If your case involves a family relationship or if dependents are involved, you must also provide relationship documents such as photographs, birth certificates, joint financial and legal documents, insurance and employment benefits documents, etc. Special types of cases (e.g., DACA, asylum) require additional documents such as proof of residence and past persecution.  Make an appointment to speak to your legal counsel to discuss them. If you are not sure about a document, just bring it anyway. 

How to answer questions in immigration interviews

For most applicants, facing a stoic immigration officer and answering questions is the most challenging part of the process.  To clarify, not all of them are serious and not smiling.  Some of them are quite friendly and nice.  However, understand that they are not your friends. They are there to do an important job, and they are required to follow the law. So be very careful how you answer their questions. A mock interview with your lawyer is the best way to prepare for the interview.  Anticipate the types of questions that will be asked and rehearse it with your lawyer.  A good attorney should know about the special issues about your case and how to prepare for the related questions. 

There are two main points to remember.  One, you must tell the truth when you answer questions.  If you do not remember or not sure about something, just say so. Do not make up anything untruthful.  Making false statements under oath is a very serious offense, which can destroy your eligibility to obtain any immigration benefits.  

Second, you should listen very carefully to the questions asked.  I have clients who are nervous and try to remember answers about a subject before the interview.   As soon as the officer starts to talk about that subject, they would just spill out the memorized answers automatically, which can cause problems.  Oftentimes, the officer was not even asking about that question. Hence, before answering a question, especially a "sensitive" one, take a moment to think and organize your answer first before speaking. 

Plan the logistics ahead of time

Logistics here means things like transportation, parking, meals, clothing, and coordination with your lawyer. If you have never been to the location of the interview, take a trip there at least once to get familiar with the streets and traffic.  Interviews are often scheduled during morning rush hours, and not knowing where to go could cause delay.  What floor of the building will the interview be held? Are you going to use public transportation or drive to the venue? 

For an overseas consulate interview, you may have to plan to travel to the consulate location at least one day before.  What breakfast will you be having?  You don't want to attend an interview empty-stomach or fully-loaded. If your lawyer and other witnesses are coming, how and where do you meet?  Also plan what to wear. You most likely will have to go through security check with metal detectors. Hence, wear something easy to take off.  Dress appropriately.  You don't have to wear a suit, but tank-tops and shorts are out of the question. 

A final note, in most cases, you won't be able to get a definite answer about the result after the interview.  Immigration officers are required to do some final and updated security checks in all cases. Or sometimes, they may need to get a missing file about you from another office.  Hence, don't be alarmed if there are delays or requests for additional documents. Just try to cooperate and comply. 

In short, with proper preparation and mental readiness, you will likely walk out with a smile on your face after your immigration interview. 

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

U.S. to waive visa interviews for H1B, F, M, H3, L, O, P, Q, H2B through 2022

Today, the Department of State announced expanded interview waiver policies for visa applicants who are coming to study and work in the United States. 

From now until December 31, 2022, U.S. consular officers are temporarily authorized to waive in-person interviews for individuals and their dependents applying for U.S. visas in the following categories: 

• Persons in Specialty Occupations (H-1B visas)
• Trainee or Special Education Visitors (H-3 visas)
• Intracompany Transferees (L visas)
• Individuals with Extraordinary Ability or Achievement (O visas)
• Athletes, Artists, and Entertainers (P visas), and 
• Participants in International Cultural Exchange Programs (Q visas). 

From now until December 31, 2022, U.S. consular officers’ current ability to waive the in-person interview for Temporary Agricultural and Non-agricultural Workers (H-2 visas), Students (F and M visas), and Student Exchange Visitors (Academic J visas) will be extended.

Finally, the existing authorization to waive the in-person interview for applicants renewing a visa in the same visa class within 48 months of the prior visa’s expiration has been extended indefinitely.

These measures are to balance the danger of Covid and the importance of allowing foreign workers and students to enter the U.S.   

It is important to note that in-person interviews may still be required on a case-by-case basis, depending on local conditions.  Applicants should check with the particular embassy or consulate websites for more detailed information. 

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

Broadened National Interest Exception for Qualified H-1B/ L-1 Visas

The Department of State (DOS)  announced further relaxations on 8/12/2020 regarding President Trump's ban on H-1B/L-1 visas. 

One major exception is allowing H-1B and L-1 applicants who "resume ongoing employment in the U.S. in the same position with the same employer and visa classification" to be issued an H or L visa. This typically covers H-1B and L-1 employees who are extending their work authorization with the same employer in the same position. 

What about the H-1B workers who are applying for new employment, changing position or employer, and L-1A applicants who are establishing a new office in the U.S.? 

Alternatively, an H-1B applicant may be eligible for a visa if TWO of the following criteria are met:

1) The employer has a continued need for the services or labor to be performed by the applicant in the U.S. 

Consulate officers will look at Labor Condition Applications (LCAs) to determine if this criterion is met. If an LCA is approved during or after July 2020, it is an indicator itself showing that the employer still needs the H-1B worker. For applicants with an LCA approved before July 2020, Consulate Officers need to look that the complete visa application to determine if the continuous need from the U.S. employer is established. However, if the essential functions of the H-1B position can be done from outside the U.S., this criterion is not met regardless of when the LCA was approved. 

2) The U.S. employer is meeting a critical infrastructure need and the H-1B worker will provide significant and unique contributions to the employer. 

This is a two-prong test. First, the H-1B worker must either in a senior-level position, or provide a service that is unique and vital to the management and success of the employer, or has special qualifications that will provide significant and unique contributions to the U.S. employer. 

Critical infrastructure sectors includes chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems. 

3) The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage as provided in the LCA at least 15 percent. 

4) The applicant's education, training and/of experience shows unusual expertise in the specialty occupation in which the applicant will be employed. 

According to the DOS, the applicant can be a doctorate or professional degree holder, or have many years of relevant work experience to demonstrate the advanced expertise. 

5) Evidence to show that the denial of visa under the Presidential Proclamation will cause financial hardship to the U.S. employer. 

For L-1A applicants, a visa may also be issued when at least TWO of the following requirements are met:

1) Will be a senior-level level executive or manager;

2) Has spent multiple years with the company overseas, establishing a substantial knowledge and expertise of the company that cannot be replaced by a new employee within the company without extensive training that would cause the employer financial hardship; 

3) Will fill a critical business need for employer relating to a critical infrastructure need. 

For L-1B applicants, if they are not staying with the same employer and same position, they need to fulfill the following requirements before they are able to get a visa:

1) the applicant will provide significant and unique contributions to the U.S. employer; 

2) the applicant's specialized knowledge is specifically related to a critical infrastructure need; AND

3) the applicant spent multiple years with the company overseas, establishing a substantial knowledge and expertise of the company that cannot be replaced by a new employee within the company without extensive training that would cause the employer financial hardship; 

The broadened exceptions for H-1B and L visa applicants are positive news. But these exceptions present new requirements that are not easy to fulfill. The pandemic-related travel bans and delayed reopening of the worldwide U.S. Embassies and Consulate Offices are also making it harder for the foreign workers to go back to the U.S, even if they can benefit from these exceptions. 

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

The Coronavirus' Impact on Travel and U.S. Visa Services

The sudden outbreak of the coronavirus has made it almost impossible to travel in and out of Wuhan, China, where it was first identified. Authorities announced a citywide lockdown, stopping air and rail travel in and out of Wuhan in an attempt to lower contagion. The U.S. embassy in China has issued a warning to not travel to Hubei province. Approximately 1,000 U.S. citizens have been caught in the middle of this situation, unable to leave the country.

U.S. diplomats were quick to arrange an evacuation for citizens in Wuhan. The U.S. government has arranged for a plane to transport U.S. consulate workers, American citizens, and their families from Wuhan back to the United States. The flight is scheduled for 1/28/2020 and will transport around 230 people from Wuhan Tianhe International Airport to San Francisco. The U.S. embassy urges any U.S. citizen holding a passport to contact them, though seating is very limited. There is no mention of whether any more flights will be arranged.

The American Consulate in Wuhan will be temporarily shut down. Anyone needing a visa to enter the U.S. should go to the other 4 other consulates in Chengdu, Guangzhou, Shanghai, and Shenyang, or the embassy in Beijing. Applicants for L1 and H1B visas may only apply at the U.S. consulates in Guangzhou, Shanghai, or U.S. Embassy in Beijing. Other consulates will not process their type of visa.

U.S. Consulate General in Hong Kong and Macau is also on alert. Hong Kong has 8 confirmed cases of the virus thus far and has declared the outbreak to be an emergency.  Both the Consulate General in Hong Kong and American Institute in Taiwan (AIT) issued warnings against traveling to Hubei province. 

In general, American visa services are expected to be negatively impacted by the Chinese epidemic. Processing time of applications will likely to be longer.  Travelers are advised to plan things accordingly if they must travel internationally. 

The spread of the deadly new coronavirus has proven to be rapid and fierce.  There are no vaccines for the virus, which has already spread to many countries including Thailand, Hong Kong, the United States, Taiwan, Australia, Macau, Singapore, Japan, South Korea, Malaysia, France, Canada, Vietnam, Nepal,  and Cambodia. Scientists and medical professionals are fighting day and night to stop the coronavirus from becoming a full-blown pandemic.  Until things get better, international travel will continue to be severely impacted. 

H and L Visas Processing Limited to Beijing, Guangzhou and Shanghai

Starting March 1, 2019, interviews for H and L visas will be conducted only at the U.S. Embassy Beijing, U.S. Consulate General Guangzhou, and U.S. Consulate General Shanghai. H or L visa interviews will no longer be conducted at U.S. Consulate General Chengdu or U.S. Consulate General Shenyang.  U.S. Department of State announced these changes to AILA in a recent liaison meeting.  According to DOS, these changes are made to better handle the high volume and complexity of  H and L visa cases.  The visa categories affected include H-1B, L-1A, L-1B, H-4, L-2, etc.  Chinese visa applicants should pay attention to these changes.  

(Source: AILA Doc. No. 19013039)

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U.S. Visa Holders Presumed Lying If They Engage in Disallowed Activities Within 90 Days of Entry

Foreign visitors need to watch out for they do within the first 90 days of their entry, or else, their visas could be cancelled and they might not be able to return to the U.S. again. 

New 90-Day Policy

Under the U.S. immigration laws, a person who has made misrepresentations to an American official is not allowed to enter the country.   Under Section 212(a)(6)(C)(i) if the Immigration Act, a foreigner who uses fraud or willful misrepresentation to apply for a visa, gain admission into the U.S., or to obtain other immigration benefit is inadmissible. Under a new State Department policy, it is easier now for a visa applicant to be found inadmissible based on false statements made during the visa application process. 

Specifically, the policy requires U.S. consular officers to presume that visa holders made material misrepresentations (false statements) in their visa applications, if within 90 days of their entry, their actions or behavior are inconsistent with, or in violation of, the visitors' visa status.  

When Harry Met Sally

For example, Harry applied for a B-2 visitor visa to enter the U.S. to visit his friends. However, one month after his entry, while visiting the Empire State Building in NY, he met Sally and fell madly in love with her. Unable to be separated from Sally, Harry proposed to her. After their marriage, Harry submitted applications to apply for a U.S. green card based his marriage to Sally, a U.S. citizen.  If the applications were filed within three months of his entry to the U.S., then Harry will be presumed to have made false statements when he applied for his B-2 visa.

Other examples of "bad" behavior that violates a foreigner's visa status include: working without authorization; enrolling in an unauthorized course of academic study; and engaging in activities that are not allowed by the visa status.
  

In general, a foreigner's immigration history, including any violations at any time, can be considered by consular and immigration officers when reviewing discretionary applications such as nonimmigrant visa applications and applications for green cards.

The new policy issued by the new State Department Secretary is another example of further tightening of the U.S. immigration policy under the Trump Administration.  Previously, nonimmigrant visa holders' behavior was scrutinized mostly during the first 30 or 60 days of entry. 

"I am innocent!"

Even under the new policy, applicants are allowed to have an opportunity to present evidence to rebut any presumption of fraud.  Take the above case as an example, if Harry can provide convincing evidence to show that he did not know Sally beforehand, their meeting was accidental, and their relationship blossomed explosively during a short time, then chances are good that he can overcome of presumption of fraud. 

The policy is imposed on all State Department employees and overseas consular officers.  USCIS has not yet formally adopted this policy.  However, individual immigration officers anecdotally have focused more on visa holders' activities after their initial admission, when reviewing applications to change or adjust status within the U.S.   Therefore, foreign visitors should be extremely cautious about their actions after arrival.  Since the new policy just came down recently without advance notice, foreigners who think they might have taken questionable actions should proceed even more cautiously to avoid visa cancellation and other negative consequences.  

Honesty is the best policy

On the flip side, foreigners should also be careful when applying for an America visa  It is important to be as accurate and complete as possible in their visa applications. Avoid making false statements or providing untruthful information about their biographic information such as marital status.  Be sure to disclose any family members that are living in the U.S. Review all information carefully before submitting the application. When in doubt, seek help from professional immigration attorneys.

Finally, although the new policy focuses on behavior within the first 90 days, foreign visitors should not assume that it is okay to engage in disallowed activities after 90 days of their entry. 

Visa Appointments Suspended in Chennai Until December 8

DOS alert noting that the U.S. Consulate General in Chennai will continue to operate with reduced staffing on 12/7/16 and has temporarily suspended appointments for routine services for visa applicants. The Consulate plans to resume routine services on 12/8/16.  (AIlA Doc. No. 16120631)

Proposal To Grant Foreign Entrepreneurs Temporary Stay In U.S.

What do Google, Yahoo and Tesla have in common? They were all founded or co-founded by immigrants.  According to a recent studies, as of 2010, at least 40% of the Fortune 500 companies in America were founded by immigrants or children of immigrants.  To attract business talents from other countries, the U.S. Department of Homeland Security (DHS) recently proposed a new rule to allow certain international entrepreneurs to enter the U.S. in parole status for up to five (5) years.

From wall street to main street, immigrant entrepreneurs' contributions to American economy cannot be denied.  According to USCIS, the new rule, once finalized, will offer entrepreneurs more options to come to the U.S. to develop their business ventures, which in turn will create job opportunities, attract investment capital and generate revenues in the U.S. 

The new International Entrepreneur Rule authorizes DHS to exercise its discretionary power to parole entrepreneurs of startup enterprises whose stay in the United States would provide "a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation."  Each case will be decided on its own.  Eligible startup entrepreneurs are those:

(1) Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;

(2) Whose startup was formed in the United States within the past three years; and

(3) Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

• Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
• Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
• Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States.  A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation. 

It is important to understand that the rule proposes to grant entrepreneurs "parole" status but not an immigration status or a visa (e.g., H-1B). During the five years of parole period, these startup entrepreneurs may apply for a nonimmigrant visa or lawful permanent residency (green card) if they are otherwise eligible. However, since they are only paroled into the United States, they are not allowed to change or adjust their status inside the country.  Rather, they must first depart the U.S. and apply for a visa to re-enter the U.S. 

Furthermore, their dependents including spouses and minor children may also obtain parole status to stay in the U.S.  The rule also proposes to grant employment authorization to the spouses of startup entrepreneurs. 

The public will have 45 days to submit comments about the new rule following its publication in the Federal Register.  DHS will publish a final rule after considering the public comments. 

Foreign H-1B workers may apply for visas now

H-1B workers whose I-129 petition for nonimmigrant workeer has been approved for FY2015 may begin filing their visa applications now at overseas U.S. consulate offices, according to a State Department alert.

The H-1B visa is for foreign professional employees to engage in specialty occupations in the U.S. for a temporary period of time.  Under the current policy, applications are accepted starting April 1 and employment begins on October 1 every fiscal year.

According to the Foreign Affairs Manual, H-1B workers may apply for visas up to 90 days in advance of the beginning of the employment status.  Hence, starting July 7 (the first business date within the 90-day window), applicants with approved H-1B petitions filed by their U.S. employers may beginn submitting applications for their H-1B visas.  State Department also reminds consular officers to advise visa applicants both verbally and in writing that they are only allowed to use the visa to apply for admission to the United States starting ten (10) days prior to the beginning of the approved employment period.  In fact, similar wordings will also be included in such H-1B visas.  Based on the 2014 calendar, September 21st will be the first date for such admission.  

Visa Interview Waiver Program Becomes Permanent

To improve the efficiency of the non-immigrant visa (NIV) application process, and to foster economic activities, the U.S. government introduced a two-year pilot program in January 2012 to waive interviews for certain types of NIV applications.  The program has been made permanent recently by the Department of State, as reported by AILA.  

Under this interview waiver program, consular officers can waive the interview for visa applicants whose previous visas in the same classification expired within the last 12 months.  Applicants must apply for their new visas in the district of their residence.  Further, interviews can also waived for applicants whose previous visas expired between 12 and 48 months ago, unless they are applying for E, H, L, P or R visas.

For example, a foreigner whose B-1 business visa expired one year ago may apply for a new B1 visa in his country of residence without interviews.  However, if the same person decides to apply for an H-1B employment visa, then he will be interviewed.

First time Brazilian visa applicants who are either younger than 16 or older than 65 are also eligible for interview waivers.

American consulates in India further expanded the program to include children applying before their 14th birthday traveling on any visa class; students returning to the U.S. to attend the same school and same program; applicants of H-1B visa applicants; and individual applicants of L1-A or L1-B visas.

In China, where economic development is red-hot, the interview waiver program has also been adopted to facilitate travel of Chinese nationals to the United States.  Consular officers in China may waive interviews for previous holders of B (business/pleasure), C1 (transit), D (crewmembers), F (students), J (exchange visitors), M (nonacademic students), and O (visitors with extraordinary ability) visas when they apply for visa renewals if their previous visas expired with the last 48 months.

In 2011, more than one million non-immigrant visa applications were processed in mainland China with more than 880,000 visas issued.  In 2012, about 1.2 million non-immigrant visas were issued in China, with about 475K visas issued in Beijing, 391K issued in Shanghai, 224K in Guangzhou, 59K in Shenyang, and 54K in Chengdu.  The substantial increase in visa approvals from 2011 to 2012 can be attributed largely to the interview waiver program.

The interview waiver program improves the efficiency of the consulate offices by freeing up visa appointments for first-time visa applicants. For example, the interview waiver program in China was used to free up about 100,000 appointment slots for first-time travelers.  As China's economy takes off, more Chinese citizens are expected to visit foreign countries for personal and business reasons.

Unlike first-time visa applicants, frequent travelers are less likely to overstay their visa status or otherwise violate the U.S.  immigration laws.  Most of them are business travelers or tourists whose presence in the U.S. is crucial to promote the cultural and economic interests of both countries.  Hence, it is reasonable to waive interviews for them.

In spite of the permanency of the interview waiver program, the State Department also makes it clear that consular officers are still obligated to interview applicants for national security reasons or quality control purposes.  Therefore, foreign visitors must always be ready to produce evidence to prove the legitimacy of their travel, and, whenever appropriate, their lack of immigrant intent.

UK to make it easier for Chinese nationals to obtain entry visas

During his trade trip to China, Chancellor George Osborne recently announced that the UK will make changes in its visa requirements to make it easier for Chinese citizens to obtain visas to visit the Great Britain.
Currently, Chinese citizens can travel to all European Union countries with one single visa.  However, a separate visa is required for them to enter the UK.  Some visa changes announced by Osborne include:

1) Chinese nationals will no longer be required to obtain separate visas if they book their trips through designated travel agents.

2) A mobile visa scheme that is already being used in Beijing and Shanghai will be expanded as well. The application process under this mobile visa scheme reportedly takes less than five minutes.

3) Finally, Chancellor Osborne also announced that a 24-hour "super priority" visa service will be available from next summer, making it easier for business visitors to travel to UK.

These changes are made by the British to facilitate the trading activities between the two countries and to compete for Chinese investments in the world market.

H1B Visa Cap Update

As of 04/20/2012, the USCIS has received 25,000 regular H-1B cap cases and 10,900 advanced degree cap cases.  

H-1B Cap-Gap Relief for FY2013

(The USCIS released the following Q&As on H-1B Cap-Gap Relief for FY2013 on 03/29/2012.)


Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations -- Questions and Answers

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, 2012 under the Fiscal Year (FY) 2013 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 FY 2013 H-1B cap-subject petition is April 2, 2012 for employment starting not before October 1, 2012.  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, 2012.  Consequently, F-1 students whose periods of authorized stay expire before October 1, 2012, and who do not qualify for a cap-gap extension, 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 and request a change of status to H-1B on October 1, 2012 qualify for a 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 Monday April 2, 2012, 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 filed request to change status to H-1B on October 1, 2012 has been made, 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, 2012 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, 2012. 

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, 2012 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. 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-1B 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 this 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-1B 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.  The student will remain in student status and can continue working OPT using the unexpired EAD until the H-1B change of status goes into effect.  The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status effective date.  This will prevent the student from changing to H-1B status.  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, to prevent the student from being terminated in SEVIS on the H-1B effective date, 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 stop working, file a Form I-539 to request reinstatement, and wait until the reinstatement request is approved before resuming employment.

Q14. In cases where a student is authorized to work OPT past the H-1B change of status effective date, can the student continue working on OPT if a request to revoke/withdraw the H-1B change of status is submitted to USCIS?

A14. If the H-1B revocation occurs before the H-1B change of status effective date, 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 the H-1B change of status effective date, the student will need to stop working before the H-1B change of status effective date, apply for reinstatement, and wait until the reinstatement request is approved before resuming employment.

NOTE:  This is NOT a cap-gap situation since the student has an EAD authorizing OPT beyond the H-1B change of status effective date.

Q15. Do students remain 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 da te, 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. 

Last updated:03/29/2012