U.S. Citizenship and Immigration Services (USCIS) recently announced that it is issuing policy guidance in the USCIS Policy Manual to address the nonimmigrant student (F and M) classifications, including USCIS’ role in the adjudication of applications for employment authorization and change or reinstatement of status to F or M classifications.
Background
The F and M nonimmigrant categories are for noncitizens who wish to study in the United States. The nonimmigrant academic student (F-1) classification allows a noncitizen to enter the United States as a full-time student at a college, university, seminary, conservatory, academic high school, elementary school, or other academic institution, or in a language training program.[1] The nonimmigrant vocational student (M-1) classification includes students in established vocational or other recognized nonacademic programs, other than language training programs.[2] In general, U.S. Immigration and Customs Enforcement (ICE) administers the nonimmigrant student program. However, USCIS adjudicates applications for employment authorization, changes of status, extensions of stay, and reinstatement of status for F and M students and their dependents in the United States. This guidance, contained in Volume 2 of the Policy Manual, is effective immediately and applies prospectively to applications filed on or after December 20, 2023. Effective immediately, the guidance contained in the Policy Manual is controlling and supersedes any related prior guidance.
Policy Highlights
- The guidance specifies how F students seeking an extension of optional practical training (OPT) based on their degree in a science, technology, engineering, and mathematics (STEM) field may be employed by startup companies, as long as the employer adheres to the training plan requirements, remains in good standing with E-Verify, and provides compensation commensurate to that provided to similarly situated U.S. workers, among other requirements.
- Explains that to employ a STEM OPT F-1 student, an employer must have and maintain a bona fide employer-employee relationship with the student. The employer must attest to this fact by signing the Form I-983, Training Plan for STEM OPT Students. The employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student. To establish a bona fide relationship, the employer may not be the F-1 student’s employer in name only, nor may the F-1 student work for the employer on a volunteer basis.
- Explains that F and M students must have a foreign residence that they have no intention of abandoning, but that F and M students may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still be able to demonstrate their intention to depart after a temporary period of stay.
- Provides general information about the nonimmigrant student (F and M) classifications and explains USCIS’ role in adjudicating applications for employment authorization, changes of status, extension of stay, and reinstatement of status for F and M students and their dependents in the United States.
The information herein is based upon a USCIS alert found at: https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-guidance-for-international-students. This bulletin is not provided as legal advice. Please consult with counsel regarding your particular situation.
[1] See INA 101(a)(15)(f).
[2] See INA 101(a)(15)(m). See 22 CFR 41.61(b)(1).
YES! PLEASE SIGN ME UP TO RECEIVE EMAIL ALERTS FROM OTHER GUNSTER PRACTICE AREAS.
This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
About Gunster
Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Naples, Orlando, Palm Beach, Stuart, Tallahassee, Tampa Bayshore, Tampa Downtown, Vero Beach, and its headquarters in West Palm Beach. With more than 280 attorneys and consultants, and over 290 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com
