[Federal Register Volume 78, Number 224 (Wednesday, November 20, 2013)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27685]
SUMMARY: This final rule rescinds the regulations which provided rules
governing employers seeking to hire F-1 foreign students as part-time
workers off-campus. These subparts became obsolete after the
authorizing statute and its two-year extension expired in 1996.
Accordingly, the Department of Labor (the Department) is taking this
action to remove regulations that no longer have force and effect.
DATES: Effective November 20, 2013.
FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D.,
Administrator, Office of Foreign Labor Certification, Room C-4312,
Employment & Training Administration, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210. Telephone number: 202-
693-3010 (this is not a toll-free number). Individuals with hearing or
speech impairments may access the telephone number above via TTY by
calling the toll-free Federal Information Relay Service at 1-877-889-
5627 (TTY/TDD). Fax: 202-693-2768.
SUPPLEMENTARY INFORMATION: Section 221 of the Immigration Act of 1990
(IMMACT) (Pub L. 101-649; 104 Stat. 4978) as amended by section
303(b)(1) of the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991 (Pub. L. 102-232; 105 Stat. 1733),
supplemented sections 101(a)(15)(F) of the Immigration and Nationality
Act (8 U.S.C 1101(a)(15)(F)) by creating a pilot program, of limited
duration. The pilot program permitted nonimmigrant foreign students to
be admitted as F-1 nonimmigrant students to work off-campus if: (1) The
alien had completed one academic year as an F-1 nonimmigrant and was
maintaining good academic standing at the educational institution; (2)
the alien would not be employed off-campus for more than 20 hours per
week during the academic term; and (3) the employer provided an
attestation to the Department of Labor and to the educational
institution that it unsuccessfully recruited for the position for at
least 60 days and would pay the higher of the actual wage at the
worksite or the prevailing wage for the occupation in the area of
employment. IMMACT, Sec 221(a). IMMACT established the program as a 3-
year pilot to end September 30, 1994. The Immigration and Nationality
Technical Corrections Act of 1994 (Pub. L. 103-416; 108 Stat. 4319)
revived and extended the program through September 30, 1996. The
program expired on September 30, 1996, and was never extended.
The Department implemented the F-1 visa pilot program through
regulations at 20 CFR part 655 subparts J and K. See 56 FR 56860 (Nov.
6, 1991), as amended by 59 FR 64776 (Dec. 15, 1994), 60 FR 61210 (Nov.
29, 1995). Because of the expiration of the statutory program, these
regulations are currently without force and effect and should be
The Department has determined that it is unnecessary to publish the
rescission of these regulations as a proposed rule, as generally
required by the Administrative Procedure Act (``APA''), 5 U.S.C.
553(b). The statutory provisions governing the pilot program have
expired, and this rule simply rescinds the implementing regulations,
which no longer have force and effect. Therefore, good cause exists for
dispensing with the notice and comment requirements of the APA. 5
U.S.C. 553(b)(B). For the same reasons, good cause exists to make this
rule effective immediately upon publication of this rule. 5 U.S.C.
A. Executive Order 12866
This final rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this rule is not a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. The Department has also determined that
this rule is not ``economically significant'' as defined in section
of Executive Order 12866. Therefore, the information enumerated in
section 6(a)(3)(C) of the order is not required.
B. Regulatory Flexibility Act
This rescission is not a ``rule'' as defined in the Regulatory
Flexibility Act (RFA), 5 U.S.C. 601(2), nor is it a ``final rule''
following a notice of proposed rulemaking as defined in the RFA, 5
U.S.C. 604(a). Therefore, the RFA does not apply and the Department is
not required to either certify that the rule would not have a
significant economic impact on a substantial number of small entities
or conduct a regulatory flexibility analysis.
C. Unfunded Mandates Reform Act of 1995
This rule will not include any Federal mandate that may result in
increased expenditures by State, local, and tribal governments, in the
aggregate, of $100 million or more, or in increased expenditures by the
private sector of $100 million or more.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of the United States-based companies to
compete with foreign based companies in domestic and export markets.
E. Executive Order 13132
The Department has reviewed this rule in accordance with E.O. 13132
regarding federalism and has determined that it does not have
federalism implications. The rule does not have substantial direct
effects on States, on the relationship between the States, or on the
distribution of power and responsibilities among the various levels of
Government as described by E.O. 13132. Therefore, the Department has
determined that this rule will not have a sufficient federalism
implication to warrant the preparation of a summary impact statement.
F. Executive Order 13175
This rule was reviewed under the terms of E.O. 13175 regarding
Indian Tribal Governments and was determined not to have Tribal
implications. The rule does not have substantial direct effects on one
or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes. As a
result, no Tribal summary impact statement has been prepared.
G. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681) requires the Department to assess the impact of this rule on
family well-being. A rule that is determined to have a negative effect
on families must be supported with an adequate rationale. The
Department has assessed this rule and determines that it will not have
a negative effect on families.
H. Executive Order 12630
This rule is not subject to E.O. 12630, Governmental Actions and
Interference With Constitutionally Protected Property Rights, because
it does not involve implementation of a policy with takings
I. Executive Order 12988
This regulation has been drafted and reviewed in accordance with
E.O. 12988, Civil Justice Reform, and will not unduly burden the
Federal court system. The regulation has been written to minimize
litigation and provide a clear legal standard for affected conduct, and
has been reviewed carefully to eliminate drafting errors and
J. Plain Language
The Department drafted this rule in plain language.
K. Executive Order 13211
This rule is not subject to E.O. 13211 regarding Energy Supply. It
will not have a significant adverse effect on the supply, distribution,
or use of energy.
L. Paperwork Reduction Act
This rule contains no new information collection requirements for
purposes of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
Accordingly, for the reasons stated herein, the Department hereby
amends 20 CFR part 655 as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
1. The authority citation for part 655 and the authority citation for
subparts J and K continue to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 109-423, 120 Stat.
2900; 8 CFR 214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii).
Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec.
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
Subpart J--[Removed and Reserved]
2. Remove and reserve subpart J, consisting of Sec. Sec. 655.900
Subpart K--[Removed and Reserved]
3. Remove and reserve subpart K, consisting of Sec. Sec. 655.1000
Signed in Washington, DC, this 17th day of October 2013.
Eric M. Seleznow,
Acting Assistant Secretary, Employment and Training Administration.
[FR Doc. 2013-27685 Filed 11-19-13; 8:45 am]
BILLING CODE 4510-FN-P
1. Once you receive a recommendation for post-completion OPT from your Designated School Official (DSO) to pursue OPT, you must apply for an employment authorization document (EAD) with USCIS within 30 days. Additionally, you may file up to 90 days prior to your program end-date and not later than 60 days after your program end date.
2. If you have completed a qualifying Science, Technology, Engineering or Mathematics (STEM) degree, and you are currently in an approved post-completion OPT period based on a designated STEM degree, you may be eligible to apply for a 17-month STEM extension of your post-completion OPT. For a STEM degree to qualify, it must appear on the STEM Designated Degree Program List. If you want to apply for a STEM extension, you must file for an extension of your EAD with USCIS before your current OPT work authorization expires. USCIS recommends that you file 90 days before the expiration of your OPT.
USCIS interim memo clarifying the eligibility requirements for a 17-month extension of Post-Completion OPT for F-1 students enrolled in STEM degree programs. Comments accepted until 11/1/13 and memo is in effect until further notice.
Generally speaking, you will need to demonstrate that the termination was erroneous. Ask your DSO for a letter explaining that. In addition, you can add your own statement/affidavit explaining the circumstances. Your DSO should help with all this.
The period of time when an F-1 student’s status and work authorization expire through the start date of their approved H-1B employment period is known as the "Cap-Gap".
Cap-Gap occurs because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.
Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the "cap-gap," meaning the regulations provide a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.
Eligibility for an Extension
H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.
Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, 2013 while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the "grace period").
Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30. If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.
Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.
Please note: F-1 students who have entered the 60-day grace period are not employment-authorized. If an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).
Those Not Qualified for an Extension
F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.
Proof of Continuing Status
To obtain proof of continuing status, a student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.
If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.
Denied H-1B Petitions
If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.
For denied cases the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation, misrepresentation, or fraud. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of a status violation, fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.
Travel during Cap-Gap Extension Period
A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.
The 90-day, or 120-day for STEM OPT, limitation on unemployment during the post-completion OPT authorization continues during the cap-gap extension.
STEM OPT Extensions
F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.
Students who are eligible for a cap-gap extension of post-completion OPT employment and F1-status may apply for a STEM OPT extension during the cap-gap extension period.
However, such application may not be made once the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.
Start Date Issues
If the students' OPT end dates are shortened to September 30, even though their H-1B employment would not begin until a later date, the student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.
Changes in Employment
Laid Off/Termination from H-1B employer: If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, the student can retrieve any unused OPT. The student will remain in student status and can continue working OPT using the unexpired EAD until the H-1B change of status goes into effect. The student also needs to make sure that USCIS receives a withdrawal request from the petitioner before the H-1B change of status effective date. This will prevent the student from changing to H-1B status. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS, to prevent the student from being terminated in SEVIS on the H-1B effective date, by contacting the SEVIS helpdesk.
If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to stop working, file a Form I-539 to request reinstatement, and wait until the reinstatement request is approved, before resuming employment.
Student finds a new H-1B job: The student can continue working with his or her approved EAD while the data fix in SEVIS is pending if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:
The student finds employment appropriate to his or her OPT;
The period of OPT is unexpired; and
The DSO has requested a data fix in SEVIS.
Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.
Pending Request to Change OPT End Date
Working during request: If the H-1B revocation occurs before October 1, the student may continue working past October 1 while the data fix remains pending, because the student will still be in valid F-1 status.
If the H-1B revocation occurs on or after October 1, the student will need to stop working before October 1, apply for reinstatement, and wait until the reinstatement request is approved before resuming employment.
Maintaining Valid F-1 Status: If the H-1B revocation occurs before the H-1B change of status effective date, the student is still in F-1 status while the data fix is pending.
If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.
Our client, a former Tri-Valley University of California (TVU) student who was left out of status due to unexpected closure of TVU, applied for reinstatement to student status. He retained us to respond to the Request for Evidence (RFE) he received on his reinstatement application. There were several serious issues raised by USCIS in the RFE. One of them was that the USCIS alleged that the online classes our client took at TVUdisqualified him from full-time F-1 student status. We prepared a comprehensive response and documented our client’s entire case history. We argued that our client complied with F-1 regulations before and after his association with TVU, followed all the instructions of his Designated School Officials (DSO’s), and should not be faulted for relying and acting on the advice of TVU DSO’s.
USCIS accepted our arguments and approved the reinstatement.
DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
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