This year brings more bad news for employers who filed H-1B petitions for foreign workers beginning on April 1, 2014. On April 10, U.S. Citizenship & Immigration Services (USCIS) announced that it had received about 172,500 H-1B petitions, far above the 85,000 H-1B visas available each year (65,000 being available for bachelor degree-level graduates, with an additional 20,000 available for advanced degree graduates of American universities). Thus, due to this H-1B visa “cap,” more than 50 per cent of the petitions filed will not be accepted for processing. USCIS has since completed a computer-generated lottery to select the petitions to be processed under the H-1B cap. For cap-subject petitions not chosen in the lottery, USCIS will reject and return the petition with filing fees.
But not all hope is lost. For those employers whose H-1B petitions are rejected, there may be other means to keep their foreign workers employed, particularly if the employee is a foreign student working on the basis of post-graduate optional practical training (OPT). OPT allows foreign students who have completed a course of study at a U.S. university to obtain work authorization for a one-year period. Because OPT is granted following graduation, many student employees’ OPT will expire during the summer of 2014. If an employer fails to file an H-1B petition for the student, or if the petition is not accepted by USCIS, they will not have another chance to file H-1B petition before April 1, 2015. By this time, these students’ OPT will have expired and they will either have to return to their home countries, begin another academic program, or, in a limited number of cases, change their student status to another nonimmigrant category and remain in the U.S.
However, it is possible for an employer facing this problem to help extend a student employee’s OPT for an additional 17-month period, assuming both the employer and employee meet specific criteria. The student employee may apply to USCIS to extend their OPT if: 1) the student employee has earned a bachelor’s, master’s or doctoral degree in Science, Technology, Engineering, and Mathematics (STEM) program fields from a U.S. university and has not already received a 17-month extension of OPT; and 2) the employer is enrolled in the E-Verify program and provides the student employee with their E-Verify number. Student employees authorized for the 17-month OPT STEM extension must work at least 20 hours per week in a position directly related to their degrees. Additionally, the employer is required to report the departure or termination of the student employee to the designated school official (DSO) at the student’s university.
E-Verify is an Internet-based system implemented by the government that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. A list of eligible STEM degrees is found at http://www.ice.gov/sevis/stemlist.htm; and employer information regarding E-Verify is available at http://www.uscis.gov/e-verify/employers.
Eligible student employees may apply to extend their OPT by filing a Form I-765, Application for Employment Authorization, with USCIS. Once approved, the applicant receives a new employment authorization document (EAD) noting the 17-month extension. Even if the student employee has filed an application for the STEM extension, and their current OPT subsequently expires, they may continue working for an employer for up to 180 days while the extension is pending.
Based on the criteria above, not all student employees will be able to obtain a STEM OPT extension. But this option should be considered, and if you have any questions regarding the STEM extension or E-Verify, please contact one of our immigration attorneys, including Rob Cohen (614/227-2066), Catherine Kang (614/227-2081), or me at 614/227-2070, for further information.