Dear Clients and Colleagues,

We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:

District Court Extends Hold on “Keeping Families Together” PIP Approvals Until September 23

The Eastern District Court of Texas has extended its hold on parole in place (PIP) approvals under the Biden Administration's “Keeping Families Together” program until September 23, 2024. This extension moves the deadline from the original date of September 09. 

While this hold is in place, applicants can still submit Form I-131F PIP applications to U.S. Citizenship and Immigration Services (USCIS), but the agency is not allowed to approve any applications during this period. The case, titled Texas et. al. vs. DHS et. al., is currently under review (Case No. 6:24-cv-00306).

The stay may be renewed if the court finds good reason to extend it further. The court is using this pause to evaluate the legality of the PIP program. An expedited schedule has been set for the litigation, and a decision could be made in the next few months. However, appeals are expected, no matter the outcome.

In the meantime, USCIS will continue to accept PIP applications and collect biometric data from applicants. PIP approvals issued before the initial hold on August 26, 2024, remain valid.

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USCIS Updates Guidance for F and M Nonimmigrant Students

On August 27, 2024, U.S. Citizenship and Immigration Services (USCIS) announced updated guidance in the USCIS Policy Manual regarding the F/M nonimmigrant student classification. This update primarily impacts students eligible for Optional Practical Training (OPT) extensions in Science, Technology, Engineering, and Mathematics (STEM) fields. Additionally, it clarifies several other aspects of F and M student regulations, including online study, school transfers, grace periods, and study abroad.

Key updates include:

• Online Study: Students can count one class or three credits per academic session (or the equivalent) toward a full course load if the class is taken online or through distance learning, provided it does not require physical attendance.
• School Transfers: Students may transfer between ICE Student and Exchange Visitor Program (SEVP)-certified schools at the same educational level or move to a different educational level.
• Grace Period Flexibility: During the 60-day grace period following post-completion OPT, students may transfer schools, change education levels, or apply for a change of nonimmigrant or immigrant status.
• Eligibility for Post-Completion OPT: Students who complete associate's, bachelor's, master's, or doctoral degree programs are eligible for post-completion OPT.
• STEM OPT Extensions: Clarifications have been made to the period during which students can apply for STEM OPT extensions, along with technical corrections.
• Study Abroad: Students enrolled in a SEVP-certified school may remain active in the SEVIS system during study abroad programs lasting less than five months. For programs longer than five months, students will need a new Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.

These updates are effective immediately and apply to all pending and newly filed requests as of the publication date.

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F-1 CPT, OPT, and STEM OPT Rules and Compliance Protocols

International students on F-1 visas in the United States are provided with unique opportunities to gain practical experience in their field of study through two main programs: Curricular Practical Training (CPT) and Optional Practical Training (OPT), including the STEM OPT extension for certain eligible students. Employers who wish to hire these students must follow specific regulations established by U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS). This article outlines the compliance protocols and employer responsibilities for hiring students under CPT, OPT, and STEM OPT programs.

Curricular Practical Training (CPT)

What is CPT?

Curricular Practical Training (CPT) is a form of temporary employment that allows F-1 students to gain work experience related to their major during their academic program. CPT must be integral to the student's curriculum and often involves internships, cooperative education programs, or a course that offers academic credit.

Employer Requirements for CPT:

1. Employment Must Be Directly Related to the Student's Major:

• The CPT position must directly relate to the student's field of study and be approved by their school as part of the curriculum. Employers should ensure that the work aligns with the student's coursework and academic objectives.

    2.  Full-time or Part-time CPT:

• CPT can be either part-time (20 hours or less per week) during the academic term or full-time (more than 20 hours per week) during school breaks. Employers should confirm the student's CPT authorization specifies whether they are eligible for part-time or full-time work.

    3.  Institutional Authorization:

• Before the student can begin CPT employment, the Designated School Official (DSO) at the student's school must authorize the work, and the employment must be recorded in the Student and Exchange Visitor Information System (SEVIS). Employers must request the student's Form I-20, which includes the CPT endorsement from the DSO.

    4.  Compliance with Standard Labor Laws:

• CPT positions must comply with labor laws regarding wages, working hours, and workplace safety. Employers must offer fair compensation unless the work qualifies as an unpaid internship under the Department of Labor's guidelines.

    5.  No Impact on Post-Graduation OPT:

• Students who engage in full-time CPT for 12 months or more are ineligible for post-graduation OPT. Employers should make students aware of this limitation if they plan to continue working in the U.S. after graduation.

Employer Responsibilities During CPT Employment:

• Maintain Academic and Professional Alignment: Employers must collaborate with the student's educational institution to ensure that the job duties align with the student's academic program and help the student meet their educational objectives.
• Regular Monitoring: Employers should maintain communication with the student and the institution to ensure the work remains within the authorized scope. Any material changes in job duties, location, or hours must be reported and may require new authorization from the DSO.

Optional Practical Training (OPT)

What is OPT?

Optional Practical Training (OPT) allows F-1 students to gain practical experience in their field of study, either during or after completing their academic program. Students are eligible for up to 12 months of OPT, and those with degrees in Science, Technology, Engineering, and Mathematics (STEM) may be eligible for a 24-month extension, allowing for up to 36 months of OPT.

Employer Requirements for OPT:

     1.  Job Must Be Directly Related to the Student's Major:

• Like CPT, the OPT employment must be related to the student's field of study. The student must demonstrate that the position helps them apply the knowledge gained in their academic program.

     2.  Employment Authorization:

• Students must apply for an Employment Authorization Document (EAD) through USCIS before they begin working under OPT. Employers must verify the EAD to ensure that the student is authorized to work for the specific period stated on the card.

     3.  Compliance with Standard Labor Laws:

• Employers must ensure that OPT employment complies with federal and state labor laws, including those governing internships. Unpaid internships are only allowed if they comply with the Department of Labor's guidelines for unpaid internships.

     4.  Work Hours:

• Students on post-completion OPT can work full-time (up to 40 hours per week). Pre-completion OPT (during the student's academic program) is limited to part-time during school sessions and full-time during breaks.

STEM OPT Compliance: Employer Requirements and Responsibilities:

The STEM OPT extension allows eligible students in certain STEM fields to extend their OPT work authorization for an additional 24 months, bringing the total possible work period to 36 months. To hire STEM OPT students, employers must meet additional requirements beyond those for regular OPT.

Key Employer Requirements for STEM OPT:

     1. Enroll in E-Verify: 

• Employers must be enrolled in the E-Verify program, either directly or through an E-Verify agent, to verify the employment eligibility of their workforce. They must remain in good standing with E-Verify throughout the student's employment.

     2.  Valid Employer Identification Number (EIN):

• Employers must have a valid EIN issued by the IRS, identifying the business as a legal entity for tax purposes.

     3.  Reporting Responsibilities:

• Employers are required to report any material changes in the student's employment (e.g., changes in job title, salary, or work location) by submitting a modified Form I-983 to the student's DSO. Additionally, if a STEM OPT student leaves or is terminated, employers must report this to the DSO within 5 business days.

     4.  Formal Training Program:

• Employers must implement a formal training program for the STEM OPT student that aligns with the student's degree and enhances their practical skills. The training must be structured and designed to meet the student's learning objectives. 

     5. Comparable Employment Conditions:

• The job offered to the STEM OPT student must be commensurate with the duties, hours, and compensation of similarly situated U.S. workers in the same role.

Terms and Conditions for Employer Participation in STEM OPT:

     1.  Bona Fide Employer-Employee Relationship:

• The employer must have a legitimate employer-employee relationship with the student. The student must be supervised, compensated, and provided with training by the employer, not merely employed in name only.

     2.  Sufficient Resources and Personnel:

• Employers must have the necessary resources and personnel available to provide appropriate training and supervision as outlined in Form I-983, the training plan for STEM OPT students.

     3.  No Job Replacement:

• A STEM OPT student may not replace a full-time, part-time, temporary, or permanent U.S. worker.

     4.  Training Objectives:

• The training provided must help the student achieve their specified learning and professional development goals.

     5.  Potential DHS Site Visits:

• DHS may conduct site visits to ensure compliance with STEM OPT program requirements. These visits will confirm that employers have the necessary resources and personnel to provide structured, work-based learning as per the training plan.

Employer's Training Obligations under STEM OPT:

     1.  Complete and Maintain Form I-983:

• Employers must complete and sign Form I-983, attesting that they will provide the necessary training and supervision to the STEM OPT student. The form should outline the student's learning objectives and how the position relates to their academic background.

     2.  Supervision and Resources:

• Employers must ensure that qualified personnel are available to supervise the student. They cannot delegate training responsibilities to third parties (e.g., clients or contractors).

     3.  Customizing the Training Plan:

• The training plan must be tailored to the individual student's learning objectives. Employers may use existing training programs but must ensure they align with the student's academic field and professional aspirations.

     4.  Site Visits and Compliance:

•  Employers must be prepared for DHS site visits to ensure compliance with the training plan and overall STEM OPT requirements.

Temporary Agencies and Consulting Firms:

Temporary staffing agencies and consulting firms can hire STEM OPT students if they directly provide the student's training and supervision. The agency must have a bona fide employer-employee relationship with the student and cannot simply place the student with a third-party client.

To Pay or Not to Pay to CPT, OPT, and STEM OPT Holders:

Yes, individuals on OPT, CPT, or STEM OPT can work part-time and participate in unpaid internships, but there are specific guidelines and compliance factors to consider for each program.

CPT (Curricular Practical Training)

     1.  Part-Time Work:

• CPT can be either part-time (20 hours or less per week) or full-time, depending on the authorization provided by the student's school and the specifics of their academic program.
• Part-time CPT is typically allowed during the academic term, and full-time CPT may be available during breaks or in programs that permit it

     2.  Unpaid Internships:

• Students can participate in unpaid internships under CPT, but the internship must comply with U.S. labor laws, specifically the Fair Labor Standards Act (FLSA), which governs unpaid internships.
• The unpaid internship should be for educational purposes and should not primarily benefit the employer. The internship should meet the Department of Labor's criteria for unpaid internships.

OPT (Optional Practical Training)

     1.  Part-Time Work:

• On pre-completion OPT (OPT during the student's academic program), students can work part-time (20 hours or less per week) while school is in session. They can work full-time during breaks or post-completion OPT (after graduation).

     2.  Unpaid Internships:

• Students on OPT can also engage in unpaid internships, but similar to CPT, unpaid work must comply with labor laws.
• Unpaid internships should be structured to ensure the experience benefits the student's education and not just the employer's business needs. Internships in non-profits and volunteer roles often qualify, but for-profit companies need to ensure they meet labor guidelines.

STEM OPT Extension (24-Month Extension for STEM Graduates)

     1.  Part-Time Work:

• STEM OPT students are generally expected to work full-time (over 20 hours per week). However, part-time work of at least 20 hours per week is allowed if it aligns with the student's training plan.

     2.  Unpaid Internships:

• Unpaid internships are not typical for STEM OPT. The rules require that the student's employment conditions (duties, hours, and compensation) be commensurate with those of similarly situated U.S. workers.
• Therefore, STEM OPT employment is generally expected to be paid. If unpaid, it might raise compliance issues, as the employer must sign Form I-983 and confirm that they are providing structured training equivalent to that of paid positions in the field.

Important Considerations:

1. Labor Law Compliance: Any unpaid work or internship must comply with labor laws, particularly for-profit companies. The Department of Labor has specific guidelines regarding when an internship can be unpaid, primarily focusing on whether the experience benefits the student more than the employer.
2. Part-Time Work Restrictions: Students should ensure that their part-time work authorization aligns with their immigration status and school authorization. For instance, working more than 20 hours a week during part-time authorization periods may violate immigration status.
3. Volunteer Work: In addition to unpaid internships, students can volunteer for non-profit organizations or roles that do not typically require payment.

Summary:

• CPT: Can work part-time and unpaid as long as it's for academic credit and follows labor laws.
• OPT: Can work part-time or engage in unpaid internships, but the work should be related to the student's field of study.
• STEM OPT: Can work part-time (at least 20 hours per week) but is generally expected to be paid, as unpaid internships do not typically meet the STEM OPT requirements.

Before accepting an unpaid internship, it's important to ensure that the work complies with U.S. labor laws and that the employment is authorized through the school and immigration guidelines.

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We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.

Sincerely,

Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.