Naturalization application denied for unauthorized employment prior to gaining legal permanent residence

In a recent decision, the U.S. Circuit Court for the 8th Circuit denied an application for U.S. citizenship after determining the applicant had engaged in unauthorized employment while in the U.S. pursuant to a non-immigrant, R-1 visa. The applicant in this case began working for an employer more than six months prior to the date that he was authorized by USCIS to do so, making him ineligible to apply for adjustment of status. This period of unauthorized employment was not known to USCIS at the time the agency approved his green card, but came to light when he listed his employers and dates of employment on his application for U.S. citizenship. As this unauthorized employment would have caused the applicant's green card application to be denied, the USCIS adjudicator conducting the naturalization interview determined that the legal permanent resident status should never have been granted in the first place and therefore denied the naturalization application.  Both a U.S. District Court and the U.S. Circuit Court for the 8th Circuit upheld USCIS's denial. 

This outcome is a warning to any foreign nationals who believe receiving a green card ends any possibility of further scrutiny into their employment and immigration history.  This case also highlights the importance of applicants ensuring any and all work undertaken in the U.S. prior to receiving a green card is specifically authorized. If you have questions regarding employment authorization or whether it could impact a green card or naturalization application, you should contact one of our immigration attorneys at info@iandoli.com or by calling us at 617-482-1010 before applying.

DHS set to publish new, final rule on OPT STEM this month

Last month we brought you news about the January 23, 2016 order from the U.S. District Court for the District of Columbia that allowed the Department of Homeland Security's ("DHS") 2008 regulations on Optional Practical Training ("OPT") and the available 17-month STEM extension to remain in effect through May 10, 2016. 

On February 5, 2016, DHS sent its final STEM OPT rule to the Office of Management and Budget ("OMB") for review before publication in the Federal Register. We expect the final rule to be published in the Federal Register this month in order for DHS to accommodate the May 10, 2016 vacatur date of the current rule (if the new rule is to be effective 60 days after publication). This new, final rule will include a number of important changes to the STEM OPT program. To review DHS's proposed (not final) regulations, click here.  To review our firm's re-cap of the ongoing litigation and view a copy of the most recent order, click here.

The attorneys of Iandoli, Desai & Cronin P.C. will continue to post updates on this important news at www.iandoli.com/newsandupdates. You can contact us at info@iandoli.com with your questions about STEM OPT, the proposed regulations, and any other immigration related questions.

OPT STEM Update - Current STEM OPT rules stay in place until May 10, 2016

On Friday, January 23, 2016, the U.S District Court for the District of Columbia ordered the vacatur of the present STEM OPT rules be stayed until May 10, 2016.  This action comes as a relief to international students currently on F-1 OPT STEM extension or who are eligible for such extension, as well as their employers and their schools' international student offices.  Pursuant to this latest order, the current 17-month extension of OPT, available to students who graduated from a U.S. college or university with a STEM degree, will remain in place until at least May 10, 2016 while we await publication of the final rule on STEM OPT from the Department of Homeland Security ("DHS").

To recap, the Washington Alliance of Technology workers sued DHS last year, arguing that DHS had not engaged in proper notice and comment when it promulgated the 2008 regulations that enabled F-1 students to seek an 17-month extension of work authorization pursuant to their period of Optional Practical Training ("OPT")  after completing their studies in the U.S.  In August 2015, the U.S. District Court agreed with the Washington Alliance of Technology workers and ordered the current STEM OPT rules that allowed for a 17 month extension in work authorization be vacated as of February 12, 2016 unless DHS corrected its procedural deficiency.  In October 2015, DHS published the new proposed STEM OPT rule and received over 50,000 comments in response. On December 22, 2015, DHS filed a motion requesting the court permit the existing STEM OPT extension program to continue until May 10, 2016 to enable the agency time to address a majority of the comments received when publishing its final rule.  This most recent order, dated January 23, 2016 and available to view here, allows DHS's motion and thus extends the existing STEM OPT program rules from 2008 through the spring.  

We expect DHS will publish its final rule in the coming months with a number of important changes to the STEM OPT program.  The attorneys of Iandoli, Desai & Cronin P.C. will continue to post updates on this important news at www.iandoli.com/newsandupdates.  You can contact us at info@iandoli.com with your questions about STEM OPT, the proposed regulations, and any other immigration related questions.

DHS requests Court to extend STEM OPT program until May 10, 2016

In August 2015, a U.S. District Court found DHS had failed to provide notice and invite public comment when it promulgated the 2008 STEM OPT extension rule, which to date has enabled thousands of F-1 students with degrees in the STEM fields to receive a 17 month extension to their existing one year of work authorization in the U.S. following graduation. As part of this recent District Court ruling, the judge ordered that the 17 month STEM OPT extension program be vacated as of February 12, 2016 unless DHS corrects its procedural deficiency. In October 2015, DHS published the new proposed STEM OPT rule and has since received an astounding 50,500 comments. On December 22, 2015, DHS filed a motion requesting the court permit the existing STEM OPT extension program to continue until May 10, 2016 to enable the agency time to address a majority of the comments received when publishing its final rule. DHS's request would allow an additional 30 days to complete the rulemaking and 60 days to train agency personnel on the new STEM OPT requirements, as well as prepare training aids and material for foreign students, U.S. schools and U.S. employers. 

Iandoli Desai & Cronin P.C. will keep you informed of all updates related to the STEM OPT litigation on our website at www.iandoli.com/newsandupdates.