On June 22, 2020, President Trump has issued a Proclamation that suspends the entry of foreign nationals on certain employment-based non-immigrant visas into the United States.
It is affecting the following visa classifications:
But it is not applicable to Lawful Permanent residents, Spouse/children of US Citizens and few others.
The suspension of entry without a valid visa is effective from June 24th to December 31st, 2020
Beneficiaries with valid visa should be able to enter the US and the current Proclamation will not impact adjudications of extensions/amendments/change of employer that are being filed within US.
CAP subject petitions that are filed with a request for consular processing will be adjudicated by USCIS, but the entry of certain beneficiaries will be delayed due to the current Proclamation.
This Proclamation also extends, effective immediately, Presidential Proclamation 10014 issued on April 22, 2020, which suspended the entry of certain immigrants into the United States.
Every year large number of international students arrive in United States on F-1 visa with a motive to pursue masters/bachelors programs in various universities. These students who complete their masters/bachelors with a major field in one of the STEM (Science, Technology, Engineering, and Math) are eligible for one year of initial OPT (Optional Practical Training Program) and 2 years of STEM OPT Extension, which allows them to work in the United States. There has been a constant rise in the employment of OPT/STEM-OPT students by IT services companies. Several factors are contributing to this trend, ranging from shortage in local workers to recent complexities in H-1B program. This article discusses the advantages of hiring OPT/STEM-OPT students and employer’s obligations when hiring students.
Advantages of hiring OPT/STEM-OPT students
Specialized degree and knowledge: The rigorous curriculum of the US universities educates the students with cutting edge technologies and prepare them with the knowledge required to join the workforce. Furthermore, some students have prior work experience gained either through employment in their home country or through CPT (Curricular Practical Training Program) making them attractive to the IT services companies.
Willing to adapt to new technologies: As part of their education program, OPT/STEM-OPT students get exposed to wide varieties of latest technologies. These technological foundations allow the students to adapt to new emerging technologies quickly.
Ready work authorizations: OPT/STEM-OPT students have work authorizations which allow them to work in the domains related to their field of study. This helps the employer in avoiding the costs and uncertainties associated with other types of work authorizations.
Job location flexibility: IT services companies have job opportunities throughout the US and those opportunities needs to be filled quickly. Students are generally flexible and willing to relocate to new places on a short notice. This flexibility helps the IT services companies to fill the job openings with OPT/STEM-OPT students efficiently.
Employer Obligations in hiring OPT/STEM-OPT students
Even though OPT/STEM-OPT students are attractive to IT services companies, there are certain obligations & challenges that needs to be considered by employers. This is especially true, when students are placed at 3rd party worksites where daily supervision remains a challenge for few companies. IT services companies should be cautious when hiring STEM-OPT students and consider various factors to avoid potential liabilities.
E-Verify Employer: The employer must be an E-Verify employer to hire any STEM-OPT student.
I-9 Compliance: Often employers have the questions like “our company doesn’t pay the OPT student, should we still run the I-9 for such student”. As per the rule of I-9 compliance, an I-9 must be run for a paid employee. Therefore, it may not be required for unpaid internship/volunteer employment cases. When employer decides to start making payment to the services of OPT student, the I-9 compliance requirements should be met. Also, employer should be cautious when the EAD of student is about to expire.
Labor Laws: Small companies often ignore local, state, and federal labor laws while hiring OPT students. The labor laws kick in when the stated student is engaged in productive work and not getting paid for his/her services. Therefore, it is recommended to check the local, and state labor laws before hiring the OPT/STEM-OPT talent.
Compensation: There is a myth that STEM OPT students can be paid a minimum wage and prevailing wage is only applicable to H-1B workers due to the labor condition applications (LCAs). All employers and STEM OPT students are required to complete form I-983 as part of the hiring process providing specific information about the training program and agreeing to notify the designated school official (DSO) if there are any material changes to the training program. In addition to that, Form I-983 must be repeatedly updated with the student’s progress in the training program. Employers, in section 3 of I-983, attest, verify, and sign under penalty of perjury that “The student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker and duties, hours, and compensation would be in commensurate with the similar US employees”. Therefore, STEM OPT students can’t be paid less than what comparable workers are getting paid. It is often a good practice to refer to proper wage source before determining salary for STEM OPTs.
STEM OPT site inspections: ICE has recently started visiting worksites of employers to ensure that employers are complying with Form I-983 statements. The site visits are to ensure that employer meets program requirements and have the resources to provide structured and guided work-based learning to students. ICE usually reviews the records and questions the supervisors. The whole process can take around 5 hours per employer. As of now, based on few inspections, the length of the site visits appears to be in the range of 1-2 hours rather than 5 hours.
Even without a site visit, compliance is extremely important. Form I-983 creates obligations certified by both the student and the employer. Violations could impact future adjudications if USCIS finds discrepancies between the Form I-983 and social media information, submitted resumes etc. Furthermore, students will accrue unlawful presence if some of the conditions haven’t been met or ignored, jeopardizing not only student’s status but also the reputation of the employer.
Employers have several advantages in hiring the OPT/STEM-OPT students in terms of their specialized knowledge, flexibility, adaptability and work authorizations in filling the job opportunities throughout the US. Also, employers have obligations and must follow the requirements of I-983, Labor laws etc. to avoid potential penalties and liabilities. When the regulations are followed properly, OPT/STEM-OPT students can be a great resource for employers like IT services companies.
There have been speculations going around that Trump Administration has plans to stop granting work permits to spouses of H-1B visa holders, overturning a 2015 H-4 EAD Rule, which allowed work permits for eligible H-4 visa holders.
The Department of Homeland Security (DHS) is already facing a lawsuit from Save Jobs USA to this effect. As per recent development, court granted the DHS’s motion to hold the proceedings in abeyance pending further order of the court and denied the motion to reschedule briefing and oral argument. Parties were directed to file motions to govern further proceedings by January 2, 2018.
DHS sought time to review the H-4 EAD rule to ensure that it meets the newly announced priorities and to decide whether to undertake a new rulemaking concerning the H-4 Rule and comply with the President’s Order “Buy American and Hire American”.
Finally, there is no official notification from DHS other than above. The rule is still under review by authorities and it is likely that a decision may come out at any time in coming months.
I’m humbled to see the overwhelming response the posts have received so far and wanted to share my reflections on them. Before I go further, I want to share with you the genesis of why I started these posts. Generally, when a client asks their attorney or law firm about the current situation in the industry, most of the time the client receives a localized view of the trends based on the information their attorney/lawfirm has seen internally. Unfortunately, this doesn’t reflect the global view of the trends and sometimes misses the trends. I thought business owners and beneficiaries deserve better information and should have access to global view of the trends.
So I have analyzed the data and started sharing the findings on social media channels. You will continue to seem them over the next 2-3 weeks. The social measures like impressions and views are very impressive so far and have blown away my expectations. Big thanks to you. If you like the posts, please share with your friends or Like them.
The images I have shared are optimized for mobile devices. Because of the limited mobile device screen sizes, I have limited the number of data points in each image to around 6. But there are more data points for each trend like the one below and you can get access to them at http://www.kamalalaw.com/h1b-trends. Several people have got access to them already. I’m sure, you will like them too and don’t miss out.
The post on Occupational Titles triggered several messages from the community, requesting to include trends on wage levels for Occupational Titles like Computer Programmers. Also, there are requests to include trends on RFEs. I initially thought of providing around 15 h1b trends, but now I plan to extend the trends to cover the information the community is requesting.
If you have any questions/comments/feedback, please drop a line at firstname.lastname@example.org and I will get back to you. Have a great weekend.