U.S. Department of State: Consulates to Issue F-1 Visas Within 15 Days

The U.S. Department of State has announced that all U.S. embassies and consulates will expedite the processing of F-1 student visa stamp applications to ensure that qualified foreign students are able to begin their studies on time.   According to the Department of State, the maximum wait for a student visa appointment (for all posts) is fewer than 15 days.  Foreign students can apply for their visas up to 120 days before their academic programs begin.

F-1 Stamping Remains Good (and Fast) Alternative to Change of Status from Within the U.S.

We welcome the Department of State’s commitment to issue F-1 student visas on an expedited basis within 15 days.   Our office often counsels foreign nationals who are in the U.S. and seek to commence study by switching their current valid status (H-1, H-4, L-1, among others) to F-1 student status by filing an application to change status, I-539, from within the U.S.     We routinely file a number of such applications; however, this approach is not always perfect for everybody.

Many (prospective) students must begin their F-1 status as soon as possible in order to take advantage of a number of F-1 benefits (such as work authorization) or to comply with requirements imposed by the universities (for example, grants or other funding requiring F-1 status).   Considering the I-539 application may take 3 to 4 months (sometimes even more) to be reviewed and approved, many prospective students face difficult choices — remain in the U.S. and wait for 3-4 months for an application to change status to F-1 to be approved or leave the U.S. and take the chance that an F-1 visa stamp would be promptly adjudicated by the U.S. consulate abroad.

By making sure that F-1 student visa applications at U.S. consulates are reviewed within 15 days, the Department of State makes the F-1 stamping alternative a very feasible option for those who seek to obtain F-1 status in the U.S. on a short term or for those first-time foreign students who may be aiming to commence school on a short notice.

Conclusion

As we counsel a number of current and prospective F-1 foreign students, we welcome the Department of State’s announcement of expedited processing of F-1 student visa stamps at consulates abroad.    This announcement not only confirms the U.S. commitment to allowing foreign students to come and study into the U.S. but also provides a (relatively) fast option for those foreign nationals in the U.S. who need F-1 status but are not able to wait for the 3-4 month required to change status from within the U.S.

Please do not hesitate to contact us if we can provide any consultation or if we can be of any assistance.

Foreign F-1 Students and Program Statistics

As the new school year is underway at many colleges and universities across the U.S., it is interesting to share some statistics and profiles relating to the F-1 foreign student visa program.    The data has been released from the Student and Exchange Visitor Information System (SEVIS) as of June 30, 2011.    As of June 30, 2011, there were 10,364 SEVIS-approved schools and 784,481 active F-1 students.

Schools

Approximately 35% of all of the 10,364 SEVIS-approved schools were located within California, New York, Florida, Texas and Pennsylvania.   Only eight schools have more than 5,000 active students, and out of the 10,364 SEVIS-approved schools, approximately 6,700 have less than 10 students (approximately 3,700 schools have no foreign students).

Among the top schools were the City University of New York with 10,000 active students, University of Southern California with 7,600 students, Purdue University with 7,000 students, University of Illinois with 6,700 students and Columbia University with 6,500 foreign students.

Students

Country.   China is the country with the highest number of active foreign students – 150,899.  South Korea is second with 101,652 and India is third with 99,180.

Program of Study.   Business Management, Marketing and related is the most common major – over 160,000 active F-1 students pursue it.   Second is Engineering with 106,000 active students.

Degree.   Over 69% of all active students are enrolled in Bachelor’s  (234,465), Master’s (192,966) or Doctoral (116,372) degrees.   The number of foreign students in English-language programs is 93,603 and the active students pursuing Associate degree are 73,504.

State of Study.  More than half (55%)  of all active students go to schools within seven states – California, New York, Texas, Massachusetts, Illinois, Florida and Pennsylvania.

University of Northern Virginia (UNVA) Raided by Federal Agents – F-1 Students in Jeopardy

We have many confirmed reports that yesterday, July 28, 2011, the University of Northern Virginia’s (UNVA) campus in Annandale was raided by Immigration and Customs Enforcement (ICE) and Federal Bureau of Investigations (FBI) agents, seeking and seizing documentation relating to UNVA’s issuance of F-1 foreign student visas and UNVA’s compliance in the F-1 visa program.

According to reports, federal agents seized significant amount of boxes with paper, hard drives from administrative computers and even waste baskets.    ICE confirmed the UNVA raid in a statement, “Today, officials from ICE’s Student and Exchange Visitor Program (SEVP) served UNVA with a Notice of Intent to Withdraw (NOIW) UNVA’s authorization to admit foreign students. UNVA students should call the SEVP Response Center at 703-603-3400 for guidance.”

Similarity to TVU Raid

The UNVA raid of yesterday is very similar to the raid federal agents conducted on Tri-Valley University (TVU) earlier this year.   We have written in the past about TVU’s story and the importance of maintaining good “F-1 practices” both by the school and by the foreign students whose status and ability to remain in the U.S. is affected by the closure of their school.    Some of our readers may remember that after TVU was raided, all of its F-1 foreign students were deemed to be out of status and the TVU president was indicted on a number of federal offenses.   While there are no charges filed, the UNVA raid bears similarities to the TVU raid and subsequent closure.  It is important to note, however, that as of now, UNVA continues to operate normally and students can continue to attend classes.

UNVA F-1 Students May Need to Seek Alternatives

While it is very early in the investigation process, indications are that ICE would seek to revoke UNVA’s ability to participate in the SEVP program, which would mean that all F-1 students currently enrolled in UNVA would be out of status.   If ICE takes the same approach as it did with TVU and if ultimately UNVA is closed down, it is possible that current UNVA students may have very difficult time even transferring their I-20 to a new school.

There are approximately 2,400 or so F-1 international students enrolled in UNVA and the U.S. government has indicated that those UNVA F-1 foreign students who are not attending classes and are out of status and must leave immediately.  Students who are attending UNVA and are in full compliance with their F-1 status (i.e. attending classes and not otherwise violating the terms of the F-1 program) should be still considered to be in valid status, at least for now and for as long as UNVA’s ability to sponsor F-1 visas is not revoked.   As of now, UNVA F-1 students should also be able to transfer their SEVIS I-20 record to another school.

Conclusion

It the TVU story provides any history and a roadmap to ICE’s approach, it is likely that if ICE/FBI find irregularities of the kind found at TVU, then UNVA’s ability to admit foreign students would be revoked and the 2,400 or so foreign students’ status would be terminated.    Our office will continue to monitor developments on this case as it may affect a very high number of individuals and will continue providing updates on our website and through our weekly newsletter.

We have also committing the resources to providing individual phone consultations to allow affected F-1 students to assess their options.   We offer fast and secure online booking of legal consultations. We also offer same-day urgent phone consultations.

Expanded List of STEM-Designated Degree Programs

The Immigration and Customs Enforcement (ICE) has announced that they have expanded the list of Science, Technology, Engineering and Math (STEM) degree programs.  The expanded list includes fields such as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design, Mathematics and Computer Science.   See the updated list of all STEM degree programs.

New STEM-Designated Programs

The new STEM-designated programs come as a direct result of the current administration’s efforts to address shortages in certain high-tech sectors of the U.S. economy.   A number of agricultural degree programs have been added to the list (CIP codes 01.XXXX), in addition to Neuroscience (26.1501), certain Physical Sciences (30.XXXX), Psychology (42.XXXX), Forensic Science (43.0105), Geographic Information Systems (45.0702), certain Pharmaceutical degrees (51.20XX) and Management Science/Business Statistics (52.1301, 52.1302).

STEM-Designation Has Great Benefits

On April 8, 2008, the Department of Homeland Security published an Interim Final Rule (IFR) titled, Extending Period of Optional Practical Training (OPT) by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions.    As a result, a STEM degree allows for a total OPT time of 29 months, compared to only 12 months for non-STEM degrees.

Is My Degree in a STEM-Designated Degree Program?

The first step is to find the classification number of your degree.  The Classification of Educational Programs, a database provided by the Department of Education is helpful in looking up the CIP code for a specific degree.  Also, the degree and its CIP code are often listed on page 3 of a student’s SEVIS Form I-20.

Once the degree classification is determined, an F-1 or OPT holder should look at the updated list of STEM degrees which, according to DHS, entitled their holders to an additional term of 17 months.

Conclusion

We welcome ICE’s decision to add new degrees to the list of STEM-designated degree programs.   We hope that the newly released updated STEM list would benefit some of the recent graduates in these new STEM programs; or, would allow graduates of such programs who may be nearing their 12-month OPT expiration date to obtain a 17-month STEM OPT extension.   Please let us know if our office can be of any assistance.

Tri-Valley University Update: TVU President Indicted

We have written in the past about the Tri-Valley University and how it affected a high number of F-1 international students by engaging in alleged unlawful practices and immigration fraud.    The Tri-Valley University story is worth following because it highlights, from the perspective of the foreign students and nationals, the importance of maintaining good immigration compliance and records, not only with respect to F-1.

As a result, we continue to provide updates on the Tri-Valley University story.

Tri-Valley University President Indicted

A federal grand jury has indicted earlier this week the President of Tri-Valley University, Susan Xiao-Ping Su.     To be clear, an indictment is simply a charge by the government and until proven guilty, Ms. Su is presumed innocent.

She is accused of engaging in a two-year scheme to defraud the Department of Homeland Security (DHS) by submitting phony documents in support of Tri-Valley University’s applications to admit foreign nationals on student visas. The indictment further alleges that after obtaining such approvals, Su fraudulently issued visa-related documents to student aliens in exchange for “tuition and fees.”

The indictment alleges that in carrying out the scheme, Su is accused of making multiple false representations to DHS through Tri-Valley University’s use of the Student and Exchange Visitor Information System (SEVIS), which the U.S. government uses to monitor the “F-1″ student visa program. Through her false representations, Su was able to unlawfully obtain and issue F-1 visa-related documents without regard to the students’ academic qualifications or intent to pursue a course of study required to maintain a lawful immigration status.

According to the indictment, Su admitted and maintained foreign students in exchange for tuition and other payments. In furtherance of the F-1 visa scheme, Su also allegedly harbored multiple Tri-Valley University student-employees to assist her in making the false representations to SEVIS. The indictment further alleges the defendant engaged in multiple money laundering transactions totaling more than $3.2 million using proceeds she derived from the visa fraud scheme.

The 33 counts contained in the indictment carry maximum penalties ranging from one to 20 years imprisonment. The charges include wire fraud; mail fraud; visa fraud and conspiracy to commit visa fraud; use of a false document; making false statements to a government agency; alien harboring; unauthorized access to a government computer and money laundering.

The Tri-Valley University Story and the Importance of Good F-1 School Practices (updated)

Updated: February 16, 2011

Many of our readers are aware of the story about Tri-Valley University (recent Google News) and how it was shut down by federal authorities for allegedly defrauding students and helping them obtain F-1 student visas in violation of immigration laws.

University Allegedly Committed Fraud and Violation of U.S. Immigration Laws

According to a recently released Notice of Intent to Withdraw, Tri-Valley University issued I-20 documents allowing foreign national students to come (or remain into) to the U.S. and authorized Curriculum Practical Training (CPT) to a number of its students.  While CPT is perfectly legitimate form of employment while on F-1 status, the government alleges that Tri-Valley did not meet a number of the requirements for participation on the F-1 program.

Specifically, Tri-Valley is alleged to have listed a few hundred of its 1,613 active F-1 students as residing at a two bedroom apartment in California, in violation of F-1 rules.  Additionally, Tri-Valley is alleged to have circumvented the requirement that F-1 students cannot take more than one course (or three credit hours) per semester online.  The rest of the enrolled courses must be taken at a brick-and-mortar location of the university.  According to the government, none of the F-1 students took courses at a physical location.

Additionally, Tri-Valley is alleged to have issued CPT work authorization for students in a program not directly related to his or her program of study.  Under F-1 regulations, CPT can be authorized only if it is related to a student’s course of study and the work must be in such field.

Tri-Valley University is also alleged to have allowed students to carry less than the minimum allowed course load under the F-1 regulations.

The list of alleged violations does not end here.  Tri-Valley University is alleged to have employed F-1 students as faculty, to have been sloppy with F-1-related paperwork and reporting requirements, among others.  As a result, the government seeks not only to revoke its ability to issue F-1 visas but also to shut it down permanently.

What Happens to the 1,600+ Students Enrolled in Tri-Valley University?

The initial reaction by USCIS and CBP was that these students are in violation of their F-1 status and should be subject to removal proceedings.  There are stories that some of these students were given tracking bracelets so that the government can track their movements, criminal defendant-style.    Since most of the F-1 students in Tri-Valley are Indian nationals, the Indian government issued a strong reaction to the heavy-handed treatment and, as a result, the U.S. immigration authorities seem to be backing down.

Recent communications from USCIS indicate that they may consider the possibility of reinstating the the F-1 student status by filing of Form I-539.  Initial indications, as of now, are that USCIS would consider reinstatement of F-1 status applications on a case-by-case basis, as opposed to reinstating F-1 status to the entire Tri-Valley student population.

Reinstatement of F-1 Status Requirements

Generally, the eligibility requirements for reinstatement of F-1 status are as follows:

• The student must be currently enrolled or intend to enroll for a full-time course load;
• Can establish that the violation of status resulted from circumstances beyond his/her control;
• Has not engaged in unauthorized employment;
• Has not been out of status for more than 5 months;
• Can document sufficient financial resources to pursue a full-time course load;
• Does not have a history of repeated violations; and
• Is not deportable from the US on any other grounds.

In an extraordinary case such as Tri-Valley University, some of its students may run into difficulties meeting all of the eligibility requirements.  Specifically, the requirement of not being out of status for five months is likely to affect many of the students if the government considers the violation of status to have occurred earlier in their CPT employment.  We believe that this is one of the reasons that USCIS has indicated that they would accept and review F-1 reinstatement application on a case-by-case basis.

Importance of Good F-1 School Practices

The Tri-Valley University case illustrates how important it is for an F-1-authorized school and to an F-1 student to maintain proper F-1 practices.  While it is true that some students at Tri-Valley University were not aware of the school’s alleged misdeeds, it is plain to see how, according to the government’s allegations, some students were fully aware of the F-1 program violations committed by the school but continued nonetheless because Tri-Valley offered them an opportunity to work under CPT.

Unfortunately, there are other universities whose F-1 practices, based on anecdotal evidence, may be borderline improper.  A few of the red flags are: the school authorizes full load of online courses (only one per semester is permitted), the school authorized CPT in employment unrelated to the student’s degree, the school issued I-20 knowing that the student would not reside within driving distance of the school’s campus.

In light of this Tri-Valley University investigation, it is possible that other schools may be subject to increased scrutiny and investigation.  We are happy to have a phone consultation to help you evaluate your F-1 status terms and help you understand your options in case you have doubts.

Update:  Tri-Valley’s Response

Tri-Valley University, acting through its president, has responded to the SEVP notice.  A copy of the response and the university’s justifications can be accessed here.

How Our Office Can Help?

If you are a student affected by the Tri-Valley University shutdown, please contact us.  We would be happy to consult with you and analyze your options for filing for reinstatement of F-1 status, among other alternatives, if available.   Alternatively, we urge all F-1 students to keep in mind that it is also their responsibility to maintain F-1 status by following all relevant rules and regulations.

Extension of Post-Completion OPT and F-1 Status for Eligible Students under H-1B Cap-Gap Regulations

Late spring and early summer are generally busy period for recent foreign college graduates as far as employment immigration is concerned.  On one hand, foreign college graduates are either applying for their initial term OPT, their 17-month STEM extensions (if they qualify) or their H-1B work visas.

Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options.   In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.

Background on the H-1B Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2011 starting on October 1, 2010.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H1B status and who are seeking to extend their visa or change employers.

What Is “Cap-Gap”?

The 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, and up to the start 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 F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students.

How to Invoke the “Cap-Gap”?

Most importantly, H-1B petitions must be timely filed on behalf of an eligible F-1 student.  This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student’s authorized 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 OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing 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 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT 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.

Is Proof of Cap-Gap Status Necessary?

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their 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 an interim cap-gap I-20 showing an extension until June 1st.  Students whose approved period of OPT already extends beyond June 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record. For additional information on the interim cap-gap extension, refer to SEVP’s Supplementary Cap-Gap Guidance.

Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?

For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.

Can Students Travel While Under Cap-Gap Extension?

The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence.  However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired.  Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she 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 presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans, accordingly.