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Immigration News: DHS Updates and Changes to U.K. Immigration Laws

April 07, 2008

By The Immigration Practice Group

* DHS Releases OPT Extension Regulations
* DHS Issues New Proposed Social Security No-Match Regulation
* Changes to U.K. Immigration Laws

DHS Releases OPT Extension Regulations

On Friday, April 4, 2008, the Department of Homeland Security ("DHS") released an advance copy of its regulation to extend Optional Practical Training ("OPT") for certain F-1 students and provide "cap-gap" relief for all F-1 students with pending H-1B petitions. The DHS interim final rule, entitled "Extending Period of Optional Practical Training by 17-Months for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students with Pending H-1B Petitions," will become effective immediately upon publication in the Federal Register.  There will be a 60-day period after the effective date for public comments.  The DHS rule makes the following changes:

Extension of OPT

STEM DEGREE REQUIRED

The DHS rule will extend the maximum period of OPT from 12 to 29 months for F-1 students who have completed a science, technology, engineering, or mathematics (STEM) degree.  The current 12-month OPT period will remain available for all other F-1 students.   F-1 students who are already in a period of approved OPT and who hold a STEM degree may apply to extend the OPT period by up to 17 additional months (for a maximum total OPT period of 29 months). DHS will publish a STEM Designated Degree Program list on the Student and Exchange Visitor Program website at

. To receive a 17-month OPT extension, the student must have a bachelor's, master's, or doctoral degree in one of the degree programs on this list.  Just as when the student seeks an initial OPT period, the student must obtain a recommendation from his or her designated school official before requesting the 17-month OPT extension.

E-VERIFY PARTICIPATION REQUIRED

In addition to the STEM requirements, only F-1 students who are employed by employers who have enrolled (and are in good standing) in the E-Verify employment verification program are eligible for a 17-month OPT extension.  An employer that has joined the voluntary E-Verify program must sign a memorandum of understanding with DHS and the Social Security Administration and must utilize the system to verify the employment eligibility of all new hires.  The OPT extension request will need to include the employer's E-Verify company identification number.  E-Verify participation is not required for a request for an initial 12-month OPT period.

REPORTING REQUIREMENTS

Students on extended OPT will be required to report to the designated school official, within ten days, any change of name, address, employer, or employer address, and any loss of employment.  The student will also be required to make a validation report to the designated school official every six months starting from the date the OPT extension begins. Students must fulfill these reporting obligations in order to maintain F-1 status.  The employer must also agree to report to the designated school official at the student's school within 48 hours any termination or departure of the student.

Cap-Gap Relief

The DHS rule purports to provide "cap-gap" relief for all F-1 students with pending H-1B petitions.  The "cap gap" occurs when an F-1 student's status and work authorization expire during the current fiscal year, before he or she can begin approved H-1B employment on October 1 in the next fiscal year.  Currently, F-1 students who are the beneficiaries of approved H-1B petitions, but whose authorized period of stay expires before October 1, must depart the U.S., obtain their H-1B visas at consular posts abroad, and seek readmission in H-1B status as the new fiscal year begins.  This often results in a several-month period when the employee lacks permission to work, or even to remain, in the United States.  The DHS rule seeks to alleviate this problem by automatically extending until October 1 of the following fiscal year the duration of status and employment authorization of any F-1 student who is the beneficiary of a pending H-1B petition and a request for change of status. The H-1B petition must have been properly filed and must request an employment start date of October 1 of the next fiscal year.  The automatic extension of the student's duration of status and employment authorization will immediately terminate upon the rejection, denial, or revocation of the H-1B petition.

We note there is a very important and problematic discrepancy between the language in the preamble to the regulation and the actual language of the regulation itself.  The preamble indicates that cap-gap relief will be provided to any F-1 student with a pending H-1B petition.  However, the actual text of the regulation indicates that cap-gap relief will be provided only to F-1 students who have both an H-1B petition and a request for change of status pending. However, many H-1B beneficiaries were not eligible to request changes of status when their petitions were filed this year.  The change of status requirement would drastically curtail the number of students and employers who could benefit from this provision. We have brought this problem to the attention of DHS and are seeking a remedy, so that this regulatory action can have its intended effect.

We will provide an update as soon as it is available.  Employers wishing to explore implementation of an electronic I-9 system and/or E-Verify participation may contact us for more information.

DHS Issues New Proposed Social Security No-Match Regulation

The Department of Homeland Security (DHS) is continuing to take steps to implement its regulation to clarify the responsibilities of employers who receive no-match letters from the Social Security Administration.  DHS published a final no-match regulation on August 15, 2007, that was scheduled to take effect on September 14, 2007.  However, as a result of litigation against the regulation, it has not yet taken effect.  On October 10, 2007, the U.S. District Court for the Northern District of California preliminarily enjoined the implementation of the no-match regulation.  The court found that the plaintiffs (the AFL-CIO, the U.S. Chamber of Commerce, and other labor and business organizations) raised serious questions with regards to three of their claims and that the balance of harms tipped sharply in favor of granting the preliminary injunction.  The court has not yet held a hearing on the merits of the plaintiffs' request for a permanent injunction because DHS asked for, and received, a stay of the litigation in order to revise the regulation to address the court's concerns.  DHS has also appealed the court's preliminary injunction decision to the 9th Circuit Court of Appeals, and that appeal is currently pending. 

On Wednesday, March 26, 2008, DHS published a Supplemental Proposed Regulation, entitled "Safe-Harbor Procedures for Employers Who Receive a [Social Security] No-Match Letter: Clarification; Initial Regulatory Flexibility Analysis."  The supplemental proposed rule was drafted to address the three concerns that formed the basis of the district court's decision to enjoin the regulation.  The district court enjoined the final regulation issued in August 2007 because it found that (1) DHS had failed to provide a reasoned analysis for its new position in the regulation that a no-match letter is sufficient, by itself, to put an employer on notice of an employee's unauthorized status, (2) DHS exceeded its authority by interpreting the anti-discrimination provisions within the immigration laws, because authority over those provisions is delegated by statute to the Department of Justice, and (3) DHS violated the Regulatory Flexibility Act by not conducting a regulatory flexibility analysis to determine the impact of the rule on small businesses.  The supplemental proposed rule addresses all three of these concerns.  It provides additional explanation of the agency's position regarding no-match letters; it deletes the discussion of the immigration-related discrimination; and it provides an initial regulatory flexibility analysis of the rule's expected costs.  The actual safe harbor procedures and the regulatory text in the supplemental proposed rule are unchanged from the August 15, 2007 final rule.  For a discussion of the safe harbor procedures, please see Paul Hastings' "Immigration News" dated August 10, 2007, available at

.

The supplemental proposed rule provides a 30-day comment period.  Comments on the rule and the initial regulatory flexibility analysis must be submitted by April 25, 2008.  It is still uncertain when the DHS rule will ultimately take effect.  DHS will need to review any comments received and issue a new final rule.  It is expected that DHS will request that the district court dissolve the preliminary injunction once the final rule has been issued.  At the Government's request, the district court has scheduled the next status conference regarding the litigation for June 20, 2008.  It is likely that DHS will try to publish the new final regulation sometime before that date.  We will send out further updates as additional information becomes available.  

Changes to U.K. Immigration Laws

A new points-based, U.K. immigration system will begin this fall. Under this system, U.K. companies wishing to sponsor overseas nationals coming to work in the U.K. must be registered in advance on the Border and Immigration (BIA) register.  Online registration is currently available to enable U.K. employers to apply for their Sponsor Licenses. The process is challenging and will dramatically change the way U.K. work permits are processed in the future.  On April 22, Paul Hastings' London office is hosting a complimentary breakfast briefing regarding the changes.  The featured guest speaker will be a representative of the U.K. Home Office.  To attend the briefing, please contact Katie Hastings at

or +44-20-3023-5229.