The U.S. Citizenship and Immigration Services (USCIS) has changed its policy manual to make it easier to find and understand all the regulations regarding nonimmigrant students in F and M status. The new guidance consolidates the existing policies and clarifies issues of eligibility, school transfers, practical training and on-and off-campus employment. It provides more transparency and makes it easier for students, employers, and the universities to understand and abide by the regulations.
F status is for noncitizens who enter the United States as fulltime students at a college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. The M classification is for students attending vocations or other recognized nonacademic programs.
There are two clarifications to the policy manual that are particularly helpful for students and the companies that employ them in Optional Practical Training:
- The guidance clarifies that, although students in F and M status must have a foreign residence abroad that they do not intend to abandon, they nevertheless can be the beneficiaries of PERM labor certifications or an immigrant visa petition. In other words, a student may be able to start a green card application and still be eligible to travel and apply for a new F or M visa abroad. The fact that they are in a green card process does not necessarily lead to the conclusion that they are no longer eligible for student status, which requires that they maintain a foreign residence and intend to depart the United States after their temporary student stay ends. Of course, consular and CBP officers will still consider all the circumstances and have the discretion to determine whether the student meets the foreign residence requirement, but the new policy makes clear that starting a green card process is not conclusive. This clarification does not change the fact that, once a student in F or M status takes the final step in a green card process (filing a Form I-485, Application to Register Permanent Residence or Adjust Status), that student is no longer eligible for student visa status and cannot travel abroad until Advance Parole is received.
- The second important clarification has to do with working for start-up companies on STEM OPT. There were questions about whether a start-up company could support the training required during a STEM OPT two-year extension. The new guidance clarifies that, if the company can guarantee 20 hours of work per week, adhere to the training program, provide compensation commensurate with compensation provided to similarly situated U.S. workers, and remain in good standing with E-Verify, the fact that the company is start-up, is not definitive.
Jackson Lewis attorneys are available to assist in determining how the new guidance could affect your policies and strategies regarding hiring nonimmigrant students and sponsoring them for green cards.
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