On Monday, January 26, 2009, Immigration Customs and Enforcement announced the opening of a response center to address questions schools may have concerning the Student-Exchange Visitor Program. We have provided below a link to the Center’s contact information.
On June 20, 2008, the U.S. Department of State published in the Federal Register (Vol. 73, No. 120 [June 20, 2008]) an amendment to the J-1 visitor program adding a new J-1 visa category–College and University Student Interns. The stated purpose of the J-1 Visa Intern Program is to offer foreign students an opportunity to study in the United States at a post-secondary accredited academic institution or to participate in a student intern program. One of the principal qualifications that needs to be met is that the foreign national be enrolled in and is pursuing a degree at an accredited post secondary academic institution outside the U.S. and is participating in a student internship that will help fulfill degree requirements. J-1 Intern programs last 12 months. The rule also describes how “third parties,” i.e. businesses, academic institutions, non-profit corporations, etc. can serve as host organizations under the J-1 internship program. The Rule also describes the responsibilities of sponsoring organizations to review internship programs and the qualfications of their host organizations.¼/p>
C-G provides below a file containing Questions and Answers recently issued by United States Citizenship and Immigration Services. The Q&A touches not only on the extension of OPT for STEM degree holders, but on the F-1 automatic extension afforded to F-1 visa holders with approved H-1B’s. USCIS also addresses, among other matters, practical questions concerning what to do if one’s OPT has expired while a change of status is pending and gives advice to employers concerning the I-9 processing of students with applications for extensions of OPT pending:
USCIC Q&A on Extension of Optional Practical Training and F-1 Extensions
The American Immigration Law Foundation (AILF) is designated by the U.S. Department of State as an authorized J-1 sponsor. In light of the recent H-1B lottery and recommendations by practioners that employers may want to consider developing J-1 programs as an H-1B alternative, a review of the basic requirements and qualifications articulated by AILF regarding its own program is instructive:
(1) Every sponsor has a subject matter focus for its program. In the case of AILF, its J-1 sponsorship focuses on Public Administration and Law, Information Media and Communication, Management Business Commerce and Finance, and Science Engineering Architecture Mathematics and Industrial Occupations. Other J-1 Sponsors focus on agriculture, hubandry, medicine, etc.
(2) The employer must establish a training or internship program that is approved by the sponsoring organization.
(3) J-1 training programs can last from 3 weeks to 18 months. Internships can last up to 12 months.
(4) Generally, J-1 visas are granted to persons at least 21 years of age as of the commencement of their programs. Participants are expected to return to their nations of origin following the completion of their programs. Whether a candidate is required to return to her home country to meet the two-year residency requirement is in part based on a skill list developed for each nation by the State Department in consultation with the diplomatic organs of the J-1 home nation. This skill list can be found on the U.S. State Department’s website [See C-G Links Page].
(5) Participants who complete a J-1 program are precluded from entering into another J-1 program for 2 years under a recently issued rule.
(6) Persons on B-1 and B-2 visas may apply to the sponsoring organization while in the U.S., but must return to their countries of origin in order to apply to the U.S. consulate for the J-1 visa.
(7) J-1 trainees are generally precluded under the terms of their programs from changing status to another non-immigrant category. As J-1 visa holders are precluded from harboring an intention to immigrate to the United States they are precluded from adjusting status while in the U.S.
(8) According to a Q&A provided by AILF, the organization states that individuals who have applied for H-1B status would not be eligible to obtain J-1 status under its program because, by definition, trainees and interns are individuals intent on learning skills that H-1B’s supposedly already possess. AILF’s policy in this regard reflects the policies of other sponsors with whom C-G has consulted with respect to H-1B applicants whose petitions were not selected for adjudication this past H-1B cycle.
(9) Among other requirements businesses qualified to participate in AILF’s program must be in operation for at least 2 years.
For more information on the AILF J-1 visa program and what a business needs to do to have its program qualify for sponsorship see www.AILF.org.
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Today, the Department of Homeland Security (”DHL”) released an interim final rule extending the period of Optional Practical Training (”OPT”) from 12 months to 29 months for certain student categories. The extension would be available to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program. But more generally, the DHL Rule provides that F-1 visas for “all” students with pending H-1B petitions will automatically be extended. Finally, the new interim rule provides that students will be able to apply for OPT within 60 days of graduation. ¼/p>
