Legislation for New Merit Based Immigration System Announced

On 2nd August, President Trump announced that he is backing a new legislation for an immigration reform (Reforming American Immigration for a Strong Economy Act, or the RAISE Act) for foreign individuals who apply for legal permanent status, or green cards, through their employer.

This is going to be immensely beneficial for Indian students in America in the long term. The legislation backs a merit based system which gives preferences to highly skilled individuals for immigration. The application process will favor applicants who can speak English, financially support themselves and their families, and demonstrate skills that will contribute to the U.S economy.

Remember that this is still a legislation and not a law, however given that the president himself backs this legislation and Republicans control both senate and house – this is likely to be great news all around.

Following are the key highlights and how this might help highly educated Indian students who currently are / will be employed in the USA.

  1. Today green cards are awarded essentially by queue, and a candidate with higher education degrees, skills and a well-paying job is treated the same way as a candidate with low skills. To make matters worse green cards are awarded by limited country based quotas, putting Indian candidates at a disadvantage due to the large number of applicants. Merit based system will end this.
  2. The change is meant to make the application process fairer and allow applicants to know what their chances are of being approved before applying. Candidates would be able go online, answer questions about their education and employment experience, and learn if their background would help fill a workplace shortage in the United States. Applicants would also receive a score to give them a concrete idea of their chances of obtaining a visa.
  3. Although this proposal will go through many changes and debates – this is a step in the right direction. Indian students who are employed in the US after they complete their education are highly skilled individuals who possess advanced degrees with impressive research & academic backgrounds, so they should be able to clear bar for the merit based systems based on their qualifications and work experience without difficulty. This system is similar to the current immigration systems adopted in Canada and Australia – which have proven to be far better in terms of making immigration fair and efficient.

Great News (12 + 24 = 36 Months) STEM OPT Rule Survives!

Optional Practical Training (OPT)

12 Months: Granted to students on F1 (student) visa status completing undergraduate (BS/BA) or graduate (MS/MBA) degrees

24 Months Extension: Students with degrees from STEM (Science, Technology, Engineering & Mathematics) fields

Therefore, students completing a degree from the STEM field get an OPT period of total 36 months (Regular 12 months + 24 months extension), permitting them to work in the US without H1B visa.

STEM-OPTOPT is a temporary employment authorization that is directly related to a student’s area of study. Students pursuing their education in the US on student (F1) visa are eligible to work in the US under the F1-OPT visa program, which gives them an opportunity to apply the education obtained in an academic degree to a practical work experience.

A federal judge has dismissed a lawsuit brought by the Washington Alliance of Technology Workers (WashTech) that challenged the STEM OPT regulations that allow F1 visa holders who have degrees in STEM fields to extend their one-year Optional Practical Training (OPT) period for an additional 24 months.

The dismissal ends this lawsuit, and the current rules governing 12-month OPT and the 24-month extension for students from STEM fields remain in place.

OPT Period Extension and H1B Visa

Every year U.S. Citizenship and Immigration Services (USCIS) accepts H1B petitions starting from 1st April. As such, petitions for the fiscal year 2017 will be accepted from 1st April 2016. The current quota for H1B VISA is 65,000 under the general category and 20,000 under the advanced degree exemption – also known as the Masters quota. Thus, the total quota stands at 85,000. In the previous year, USCIS received a total of nearly 233,000 H1B petitions under both the categories put together from 1st April to 7th April and then they stopped accepting new applications. For the first time, USCIS received more than the limit of 20,000 H1B petitions under the Masters quota (the exact number of applications is not declared by USCIS). Computer generated random selection process (lottery) is conducted for Masters quota petitions which selects 20,000 applicants for the Master’s degree cap completion. The H1B petitions filed under Masters quota cap, but not selected in the first round of lottery are then added to the general quota of petitions. The lottery is then conducted for this pool to select 65,000 petitions towards the general quota cap completion. USCIS rejects and returns the remaining H1B petitions.

Advantages of OPT Extension:

Since H1B VISA petitions are accepted only once a year i.e. 1st April, if the petition is rejected, the applicant has to wait for a further period of one year, i.e., till next April to be able to apply again. In case, a student has an OPT period of only one year, his OPT period lapses before the next April. Hence, he doesn’t get a second chance to apply for H1B visa and has no option but to return to his home country. But students under STEM category will now get an OPT period of 36 Months (Regular 12 months + 24 months extension). In other words, such students will get two more chances for applying for H1B visa if their first petition is rejected. For example, if a student applies for H1B visa on 1st April 2016 but does not get selected in the lottery of 2016, he would still be able to apply for H1B visa again on 1st April 2017 and once again on 1st April 2018.

24-Month STEM OPT Extension

The Department of Homeland Security (DHS) is amending it F1 non immigrant visa regulations on Optional Practical Training (OPT) for certain students with degrees in Science, Technology, Engineering or Mathematics (STEM) from US institutions of higher education.

OPT is a period during which undergraduates (BS/BA) and graduate students (MS/MBA) with F1 status who have completed or have been pursuing their degrees for more than 9 months are permitted by the United States Citizenship and Immigration Services (USCIS) to work for 12 months on a student visa towards getting practical training to complement their education. On April 2nd 2008 DHS announced a 17-month extension to the OPT for students in qualifying STEM fields to be eligible for the 12-month permit. Any degree in any field of studies is valid. For the 17-month OPT extension a student must have received a STEM degree as listed on the USCIS website.

DHS is now amending its rule regarding OPT under STEM category to extend the OPT period to 24 months. This 24-month extension effectively replaces the 17-month OPT extension previously available to certain STEM students. In short, a student can now work in America for up to 36 months after completing degree even if he doesn’t qualify for H1B visa during that period. This rule will be effective from May 10th 2016.

The rule also makes F1 students who subsequently enroll in a new academic program and another STEM degree at a higher education level eligible for one additional 24 months STEM OPT extension. In other words, a student can get 36 months OPT after undergraduate education (BS) and also after completing a graduate degree (MS) from STEM category.

The rule also permits an F1 student completing a non-STEM graduate degree to use a prior eligible STEM degree from a US institution of higher education as the basis to apply for a STEM OPT extension. For e.g. if a student has completed MS in STEM category and now completes MBA which is a non-STEM degree is also eligible for the 36 months OPT extension.

To improve the integrity of the STEM OPT extension, the rule limits eligibility only to students with degrees from schools accredited by an accrediting agency recognized by the Department of Education.

Keep yourself updated on our next blog on E-Verify requirements and Cap-Gap extension.