Helping Those Who Cannot Help Themselves!

Justice was served today at the Immigration and Customs Enforcement’s (“ICE”) office in Atlanta, Georgia.  Our clients, a mother and her minor child, were facing imminent deportation to their native country, Guatemala.  Their deportation had been scheduled for Monday at 7:00 am, but thanks to our amazing immigration attorneys, Mario Guevara from Mundo Hispanico, and the General Counsel of Guatemala in Atlanta, Georgia, our client will stay in the country and have an opportunity to present her case before an immigration judge.

Our client and her child came to the U.S. in 2014, after fleeing her native country and fearing for her life.  She hired a local attorney, who did nothing but take her money.  He failed to request a credible fear interview, failed to submit an asylum application, and failed to inform ICE officers of our client’s fear to return to her native country.  This placed our client in a big predicament that almost got her sent back to the situation she is trying to escape.  Fortunately, after hearing about our client's case from Mario Guevara and the Guatemalan consulate, we decided to take our client's case to try to stop her imminent deportation.  Our amazing team worked diligently throughout the night to find a solution to her case.  Today, after several hours of advocacy, we were able stop the deportation and our client and her child will now have an opportunity to see an Immigration Judge, who can better weight the merits of her case.

If you would like to see what we did and the result of this case, watch this video first.

Then watch this one,

Shirley C. Zambrano
Immigration Attorney
(404) 949-8177

Que Importa Tiene La No Decision de DAPA y Expansion de DACA?

Hay muchas personas que estas confundidas con la decisión de la Corte Suprema de Justicia en el caso de DAPA y DACA.  Para resolver todas sus inquietudes, voy a contestar las preguntas más comunes con referencia al tema.
  •  Cual fue la decisión de la Corte Suprema de Justicia y que significa?    La Corte Suprema de Justicia decidió no tomar una decisión en el caso.  El caso no trataba de decidir si el DAPA and DACA eran legales y constitucionales sino de decidir si el Juez del Distrito de Texas podía suspender esos programas temporalmente hasta que el tomara la decisión final.  
  •  La decisión de la Corte Suprema de Justicia acaba por completo el DACA, DAPA, y DACA ampliada?   El DAPA y la expansión de DACA están temporalmente suspendido hasta que la corte del Distrito de Texas tome una decisión final.  La corte del Distrito de Texas no tomara la decisión hasta en el otoño.  Es más seguro que la corte del distrito suspenda el DAPA y la expansión de DACA permanente.  Si eso pasa, la decisión será apelada en la corte federal y después en la Corte Suprema de Justicia.  Esta vez ya la corte tendrá 9 juezes en vez de 8 juezes. Esto pasaría solemnemente si Hilary Clinton ganara la presidencia. Obviamente, si Donald Trump ganaría la presidencia, DAPA y DACA serian permanente cancelado.
  • Cuáles son los recursos legales que quedan al gobierno en este caso?      El Gobierno tiene que tratar y convencer el juez original del Distrito de Texas, que Obama tiene el derecho de hacer lo que hizo.  Obviamente, no van a poder ganar este caso con este juez.  La mejor opción sería que Obama publique una regla formal en el proceso legal, en vez de publicar memorandas a sus empleados.  Francamente, dudo que Obama lo hara ya que Obama tiene otras prioridades que no incluyen ayudar a millones de inmigrantes en el país. 
  • Cuál es el fallo de la Corte Suprema de Justicia en 4 a favor y 4 en contra?   El fallo es simple.  El Juez Jefe Roberts decidió que era más importante de parar la decisión de Obama en vez de quedar con sus principios y demandar evidencias de las consecuencias inventadas por el estado de Texas para llevar sus quejas.  Francamente, estoy muy desilusionado en este Juez.  Yo pensé que él tenía más respecto a la sistema que esto.  En las palabras de Trump: Triste.  

What You Need to Know About the USCIS Fee Increase!

U.S. Citizenship and Immigration Services (USCIS) decided that they’re not charging enough for application filing fees, so they recently published a notice proposing a fee increase.  I say “proposed” because the Department of Homeland Security (DHS) must first publish the proposal in the Federal Register and allow 60 days for the public to comment on the fee increase before it becomes a new rule.  So, now is the time to review and comment on the publication by clicking on this link,  As you will notice, there are only 60 days in which to make your feelings known, so please comment now because it expires on July 5, 2016!  The new rule will go into effect not less than 30 days after the comment period has ended.  Your voice will make a difference with the proposed fee increases because the comments help to formulate the final rule, so please make sure and visit the link! 

            Once you review the link, you will notice that some of the new fee increases are astronomical.  Pay particular attention to the new proposed fees for a travel document, EB-5 petition, an application for certificate of citizenship, as well as waiver forms in particular which are set to increase from $585 to $930!  If you are eligible for, or are considering filing any of these applications such as for a green card or naturalization, you should strongly consider doing so before this fee increase becomes final.   

                Please contact Danielle M. Claffey at 404.949.8151, or by email at with any questions.

Georgia Driver's License Rules Have Changed! - Adjustment of Status and Cancellation of Removal Applicants

The Georgia Department of Driver Services (DDS) has changed its position on driver's licenses for certain immigrants and is now giving driver's licenses to immigrants who are applying for adjustment of status (a green card) or who have a cancellation of removal case pending with the immigration court. In September of 2015 DDS began denying licenses to immigrants in these categories but has changed its rule.

How Do I know if I Can Get a License?

If you don’t know what type of case you have pending with immigration, just look at the “category” on your work permit. If your category is (a)(12), (a)(14), (c)(8), (c)(9), (c)(10), (c)(33), you can get a license.

What Documents Do I Need to Bring to DDS to Get a License?

1) A valid, unexpired passport
2) A valid, unexpired work permit showing category (a)(12), (a)(14), (c)(8), (c)(9), (c)(10), (c)(33)
2) Your I-797C notice that states one of the following:

      a) Pending adjustment of status application (I-485) 

      b) Pending Cancellation of Removal (EOIR 42B) NOTE: If you have pending Cancellation of Removal, you MUST ALSO bring your I-797C receipt notice from your pending Adjustment of Status application (I-485). EVERY Cancellation of Removal applicant is sent an I-797C for an I-485.

      c) Pending asylum or withholding of removal (I-589)

      d) Approved DACA

      e) Approved Deferred Action (U visa applicants included)

      f) Approved TPS

What do I do if DDS says I'm not eligible for a license because of my immigration status?

Kindly ask to see a supervisor. The immigration documentation you have is very different from the type of documentation DDS employees usually review. Some employees might not know about the rule change or understand it. A supervisor is more likely to know the rules. If you are still denied a license and you are sure you have the right paperwork, apply at a different DDS office. If you are still denied, contact us!

Can I Get A License if I Am Completely Undocumented?

Unfortunately you cannot get a license in Georgia if you are a completely undocumented immigrant. But we are working on this and will continue to push for change!

- Anna Erwin, Esq.

One Reason Why A Trump Presidency Would Destroy Immigration To America

A lot has been said about Candidate Trump's statements regarding immigrants,"Mexicans," and "the wall."  Many people, especially recent immigrants and those that know them, have had a visceral reaction to these statements and consider Trump "anti-immigrant" and unfit to lead an immigrant nation.  But I have to tell you, these nativist statements are not the reason why a Trump Presidency would destroy immigration to America.  There is another reason; the overarching cause of Trump's march toward a walled America, isolated from the rest of the work, self focused, and limiting in integration and growth--Senator Jeff Sessions.

That's right.  Senator Jeff Sessions, the first Senator to hop on board the Trump express. You have to ask yourself, why would a sitting U.S. Senator, with a lot to lose, get so cozy, so early with a candidate in the primaries.  The answer is simple. Trump talked the talk that Senator Sessions understands. The dog whistle politics of nativism, limited population, and class separation.  Trump has repeatedly said, since Senator Sessions joined his campaign, that Sessions would be a fine Secretary of Homeland Security, and that he was also serving as his primary advisor on foreign affairs and nationalsecurity.  This fact, should deeply concern anyone who understands the background and beliefs of Senator Sessions.

Let's start off with the easy stuff. Then U.S. Attorney Jeff Sessions (for the Alabama) was denied a Federal District Court Judgeship by the United States Senate in 1986 because he was accused of making numerous racial remarks and taking race based actions against members of his own U.S. Attorney office.  You might want to watch this video of SenatorTed Kennedy calling out Jeff Sessions on his actions and Sessions complete inability to respond to these allegations.  So, we know this-- Sessions has been found to have committed overt acts of racism in the past.

Subsequently, Sessions was elected as Attorney General in Alabama for two years and then won an election to succeed Democratic Senator Howell Heflinin 1996.  Senator Sessions's web page speaks volumes about his stance on the immigration issue, and if he were to become Trump's Secretary of Homeland Security, you would likely see massive changes in how our current laws and regulations operate in regards to legal immigrants.  These changes would not just be an increase in enforcement, but rather deeper and more troubling changes in a more limited legal immigration. 

From Senator Sessions's website he makes it clear that he wants to shrink legal immigration into the United States:
Senator Sessions is committed to immigration reform that serves the national interest – not the special interests – and that curbs the unprecedented flow of immigration that is sapping the wages and job prospects of those living and working here today." 
The reason he gives is the same reason de jure of the entire anti-immigration movement; to "protect the American worker."

Yet there is no evidence that lowering legal immigration would protect or create more jobs for the native born.  In fact, the numbers bear out just theopposite, that legal immigration acutally creates more jobs for american workers. 

Sessions clearly opposes President Obama's DACA and DAPA program:  
"Sessions has also been a leading opponent of President Obama’s unconstitutional executive amnesties, which gives jobs and benefits to illegal workers at the expense of struggling families."  
By calling them "executive amnesties" (whatever that means) he tries to denigrate the process by which Obama is creating deportation priorities in light of Sessions's own failures to allocate sufficient funds to carry out Trump's $400 billion dollar promise (and Obama's attempt) to deport all of the undocumented. 

Senator Sessions has repeatedly sponsored legislation that both limits the rights of all immigrants to challenge their removal, and has called on both Republican and Democratic administrations to "enforce" immigration law, despite not actually sponsoring any bills in 20 years to increase funding to do so. 

Sessions also receives an A+ from the anti-population, nativist group Numbers USA on his ratings on reducing legal immigration to the US. 

With this understanding of exactly where Senator Sessions's beliefs are in the context of legal immigration, next imagine him and his minions implementing these policies as Secretary of Homeland Security.  And, you also have to know how Trump answered Jeff Sessions questions on legal immigration, featured prominently on the Numbers USA website
Question 4: A super-majority of GOP voters say immigration is too high. Every year, on autopilot, we let in another one million immigrants on green cards, 700,000 foreign guest workers, half a million foreign students, and 100,000 refugees and asylees. Historical precedent would be to reduce record-breaking immigration, rather than continuing to surge it beyond all historical precedent. Will you support legislation to reduce immigration numbers, and will you oppose legislation that would add to the number?
ANSWER: I will support legislation to reduce the numbers, and will oppose legislation to increase the numbers.  I have laid out a detailed plan to accomplish this goal on my website.  My suggested reforms include a requirement to give all open jobs to Americans first — instead of importing foreign replacements.
So, there you have it. Senator Sessions is the one reason why a Trump Presidency would destroy immigration to America.  If that is not enough for you, perhaps you can imagine the the following is a brief list of what we would certainly see in the administrative reduction of legal immigration to the U.S., if Jeff Sessions were the Secretary of Homeland Security:

  • The ending of Parole in Place enabling family members of US military members to adjust status;
  • The ending of DAPA and DACA, and the recreating of undocumented status for these groups;
  • The ending of Advance Parole as a lawful admission for adjustment purposes;
  • The limiting of EB-5 usage by revisions to processes and regulations that will make EB-5 Regional Centers difficult, if not impossible to operate;
  • The increase of unregulated scrutiny of H-1B, L-1, and E-2 applications for US and international business seeking to expand in the US;
  • The constricting of the interpretation of lawful presence and the expansion of what constitutes unlawful presence for adjustment and consular processing purposes;
  • The expansion of restrictive reading of existing law for individual immigrants with extraordinary and exceptional ability and national interest waivers;
  • The limiting of relief for minors under the Special Immigration Juvenile program; and
  • An increasing number of RFEs and denials for EB-2 and EB-3 immigrant visa applications in the context of education and experience requirements and ability to pay wages by a continuing shifting of interpretation of existing law.

This is only a partial list; many readers can imagine other shifts of interpretative process by a Sessions's lead Department of Homeland Security both in legal immigration processing, and also in the enforcement and admissions areas.  

At the end of the day, each of us votes as Americans on topics and issues that are most important to us.  That said. the immigration issue is an overarching concern that most Americans simply to not understand.  It is very easy to buy into the nativist "us v. them" rhetoric and to blame one's own problems and sufferings on the "other."  However, looked at  without bias, the only proper conclusion one can come to is that legal immigration has been the "thing" that makes America great.  Legal immigration at its current level still leaves millions of people in the "line." to get into our country.  And, legal immigration is the lifeblood for bringing people to the U.S. who create jobs, complete families, and stimulate our economic growth. Listening to someone like Senator Sessions, a shill for the non-conservative anti-immigration movement, is the exact opposite of what a real American leader (and the son of an immigrant) should do.   Following a Trump/Sessions presidency, my greatest fear would be a weakened America who's "shining city on a hill" has been tarnished and snuffed out by those who are afraid of the future, and those who are protecting a mythical past which never existed. Think about that when you are ready to vote.  

La Orden de la Corte Suprema por otorgar las licencias de Manejar, NO esta vigente todavia en Georgia!

Muchos saben que la corte en Georgia ordeno la produccion de licencias para las personas que le han sido negadas  porque sus permisos de trabajo tienen estas categorias (c)(9), (c)(10), o (c)(18).  Todavia esa orden no sirve porque no es una orden final, aqui el estado de Georgia tiene 30 dias para apelar. Si apelan esa orden no entrara en efecto. Ademas, esta orden solo afecta a las personas que fueron parte de la demanda original, NO PARA TODOS!. No hay una orden restrictiva.

Ademas, nuestro bufete de abogados ha inicado una nueva demanda con nuestros clientes, por gratis, pidiendo un orden restriictive general aplicables a todos, que quiere decir esto, i si la corte falla a nuestro favor todas las personas que le han sido negados licencias de conducir en el estado de Georgia bajo estos parametros van a ser beneficiados por la orden, no solo las personas que tomaron parte en la demanda orginal. 

La palabra final es esto: Ten pacienica con el proceso, y eventualmente yo creo que ganaremos!
Si quiere una copia gratis de la decision, haz un click aqui y imprimolo. Pero no malgasta su tiempo llendo a DDS, todavia esta decision no esta vigente a todos!

Special Immigrant Juveniles Will Now Face Years and Years of Wait Time Before Getting a Green Card

Due to the high demand for Special Immigrant Juvenile Visas, El Salvador, Guatemala, and Honduras have already reached their yearly limit for available visas in the EB-4 category, the category in which the Special Immigrant Juvenile Visas fall. The fiscal year lasts until September 30. The May 2016 visa bulletin shows that on May 1, 2016, the date on which visas will be current for Special Immigrant Juvenile applicants, will regress back to January 1, 2010, for applicants from El Salvador, Guatemala, and Honduras.

Applicants whose applications for Adjustment of Status are not decided by May 1, 2016, and whose Special Immigrant Juvenile Petitions were filed after January 1, 2010, will not be able to apply for Adjustment of Status until the visa becomes current again. Applicants whose applications for Adjustment of Status are decided by May 1, 2016, or whose Special Immigrant Juvenile Petitions were filed before January 1, 2010, will not be affected by the change.

What does all of that mean?

This means that the approved Special Immigrant Juvenile Visas of children from El Salvador, Guatemala, and Honduras whose Applications for Adjustment of Status, or applications for their green cards, are not approved before May 1, 2016, will not be able to get their green cards. Beginning May 1, 2016, only children who filed their Special Immigrant Juvenile Visa petitions on January 1, 2010, or earlier, will have current Special Immigrant Juvenile Visas and be able apply for Adjustment of Status.

Children who applied later will have to wait. For children who applied for Special Immigrant Juvenile Status after January 1, 2010, even if their visas are approved, their visas will retrogress backwards so far that there will be an over six year wait for their visas to become current again to be able to use to apply for Adjustment of Status.

How long will I have to wait?

In the coming years, the exact wait time for a Special Immigrant Juvenile Visa to be current in order for the child to use the visa to get a green card in May or after will be hard to predict. Future visa availability will depend on a combination of demand for numbers being reported each month and the extent to which otherwise unused numbers become available. Information on EB-4 visa availability for fiscal year 2017 for El Salvador, Guatemala and Honduras will appear in the Department of State’s October 2016 Visa Bulletin, which will be published September of 2016. We will have to wait until September to see how long of a wait, if any, children will have for Special Immigrant Juvenile Visas to be current in order to be used to apply for a green card in 2017.Congress has the authority to lift the per country limit but has not done so for the Special Immigrant Juvenile category.

If you know children who have pending applications for Adjustment of Status based on an approved Special Immigrant Juvenile Visas, contact USCIS or the immigration court for a decision on the adjustment of status as SOON as possible to avoid the visa retrogressing and the child waiting years for a green card.

Anna Erwin, Esq.


If I don't have enough evidence that my marriage to a U.S. Citizen or a Resident is real, can immigration accuse me of marriage fraud?

You SHOULDN'T be accused of committing marriage fraud just for lack of evidence, but that doesn't mean this never happens!

There is a difference between lack of evidence of a real marital relationship (or lack of bona fides) and

 Under immigration law, a foreign national must prove to Immigration Services (USCIS) that his or her marriage to a U.S. Citizen or a Legal Permanent Resident is real and is not entered solely for the purpose of obtaining an immigration benefit. Besides the famous marriage interview that couples usually have to undergo, they also have to submit documentary evidence of their relationship (for example, utility bills on both of the spouses' names, joint bank accounts and other joint financial responsibilities, family pictures, children's birth certificates, letters from family and friends attesting to the validity of the couple's marriage, etc.). 

Some couples have an honest struggle finding evidence of a bona fide marriage for several reasons:

- They have not been married for very long, so they do not own anything jointly yet;

- They have no children together;

- They have bad credit or are too young to own many assets or have enough financial responsibilities;

- They are on some sort of disability leave and are earning no income;

- The couple does not live in the same city (or even the same country);

- They belong to a culture where arranged marriages are commonplace; etc.

These couples will undoubtedly have a harder time proving that their marriage is valid for immigration standards. But the lack of evidence does not in itself means that there exists down fraud in these relationships; however, because each application will be looked at by a different immigration officer, there is always the possibility that that particular officer will think there may be fraud involved--even if this an incorrect assumption. To avoid this, it is crucial to prepare a strong application to be filed with USCIS. There is always different type of evidence that a couple can submit with their application, but it will depend on the specifics of the couple's story and their living arrangements. An attorney can help prepare a strong application that includes evidence tailored to your particular circumstances.

Finally, having an attorney present at an immigration interview for a couple who does not have a lot of evidence is always a good precautionary measure that helps your chance of success.

Shirley Zambrano
Immigration Attorney

New F-1 STEM OPT Program Requirements for Employers

The Department of Homeland Security (DHS) has made critical changes to the STEM optional practical training (OPT) program, which will take effect for all F-1 applications for STEM extension approved on or after May 10, 2016.

Aside from lengthening the extension period from 17 months to 24 months, the revisions to the OPT program place new, important requirements for F-1 OPT employers, students, and schools.  The standard 12-month OPT program will remain unchanged.  F-1 students granted a 17-month STEM OPT extension before May 10, 2016 will remain subject to the prior STEM rules unless they file for an additional seven months of OPT under the new rules.

STEM OPT Training Plan. The new regulations require F-1 students and employers to complete a formal training plan Form I-983, which must be submitted to the student’s Designated School Official (DSO). The STEM OPT Training Plan must detail how the proposed employment will provide employment-based learning opportunities. Specifically, the plan must: 
  • Set specific goals for the training opportunity, including the knowledge, skills, and or techniques which will be available to the student in the proposed employment; 
  • Explain how the employer’s organization will help the student meet these goals; 
  • Detail how the employment opportunity relates to the student’s qualifying STEM degree; 
  • Explain the employer’s methods of supervising and evaluating the student’s success in their employment; and 
  • Set the student’s compensation, which must be commensurate with the payment of similarly situated U.S. workers. 
Obligation to Amend STEM OPT Training Plan. Employers have an obligation to notify the DSO within 10 days of any material change to the STEM OPT Training Plan, originally submitted on Form I-983. Mterial changes include, but are not limited to:
  • A significant decrease in the F-1’s work hours per week;
  • Any decrease in the F-1’s hours worked below 20 hours per week (other than due to time off pursuant to your organization’s leave policy);
  • Any reduction in the F-1’s compensation (other than due to a reduction in work hours);
  • A change in your organization’s EIN number due to a corporate restructuring; and
  • Any change from the existing plan that would render the training plan or the employer’s or F-1’s attestations inaccurate.
Additional Reporting Obligations. Aside from the obligations detailed above, relating to the STEM OPT Training Plan, employers have additional reporting requirements including:
  • Requirement to report the hiring  a new employee in F-1 STEM OPT. When an F-1 takes up new employment during the STEM OPT period, the F-1 and the new employer must complete a training plan and submit it to the DSO within 10 days after the employment start date.
  • Requirement to report the termination of employment of an employee in F-1 STEM OPT. An employer must report to the DSO within five business days if an F-1’s employment is terminated during the STEM OPT employment or the F-1 fails to appear for work as expected for more than five days.   (Vacations, sick days, and leaves under an employer’s normal policies do not trigger this reporting requirement.)  If the F-1 remains on a 17-month STEM OPT extension that will not be extended further, termination must be reported to the DSO within 48 hours.
Wage Attestation Requirement. There is no specific wage requirement for F-1s during the STEM OPT period.  However, the STEM OPT employer must attest that the F-1’s compensation is commensurate with that provided to U.S. employees who perform similar duties and responsibilities, and whose educational background, experience, and skill set are similar to that of the STEM OPT student.
Non-Replacement Attestation. The employer must attest that it will not replace a part-time, full-time, temporary or permanent U.S. worker with an F-1 on STEM OPT.   DHS defines “replacement” as the loss of existing or previous employment.
Evaluation of F-1 Employee’s Performance. The F-1 worker must complete a self-evaluation on Form I-983, and the employer must review it for accuracy and sign it.  Evaluations must be performed within the first 12 months of the STEM OPT employment and again at the conclusion of STEM OPT.  Evaluations are due to the DSO within 10 days after the close of the evaluation period.
Employers may incorporate any existing evaluation processes, however  the purpose of an internal performance evaluation is different from that of a STEM OPT evaluation.  An internal performance evaluation focuses on how well an employee is performing the duties of the job and is often used to determine salary increases and promotions.  A STEM OPT evaluation, on the other hand, focuses on the F-1’s progress in meeting the goals outlined in the training plan.  It is not intended to subjectively evaluate how well the F-1 performs the duties.
Employers Subject to Periodic Onsite Inspections by DHS Under the new rule, the Department of Homeland Security has the authority to conduct on-site reviews to verify whether employers and F-1 students are meeting STEM OPT program requirements and attestations. It is anticipated that site visits will be conducted by officers of U.S. Immigration and Customs Enforcement (ICE).  Site visits may be in person, or via email or telephone requests.
Site visits may include interviews with the F-1 student and his or her supervisor, a review of the training plan, and a review of the documentation the employer used to assess the wages of similarly situated U.S. workers. However, if the ICE officer observes violations of other immigration-related rules, such violations may be referred for further action.
In general, ICE is expected to provide the employer with 48 hours’ notice in advance of a site visit, but the agency may make unannounced visits if there is a complaint or other evidence of noncompliance with STEM OPT program rules.
If you would like further information about specific case scenarios or situations, please call our office or email us at to speak to one of experienced immigration attorneys.  


USCIS will begin accepting applications for 24-month STEM OPT extensions on May 10, 2016. The following steps are required:

  • The employer and the F-1 prepare and execute a training plan on Form I-983. 
  • The F-1 submits the training plan to his or her DSO, who will confirm that the STEM degree, employer and employment opportunity meet the program requirements per the I-983 training plan.
  • The F-1 obtains a newly endorsed I-20 from the DSO on or after May 10, recommending a
  • 24-month STEM extension.
  • The EAD application is filed on Form I-765 on or after May 10, within 60 days of the DSO’s endorsement and no more than 90 days before the 12-month EAD expires.
F-1 students benefit from an automatic 180-day extension of work authorization if their initial 12- month OPT EAD expires while the STEM OPT application is pending.


1. Do the new F-1 regulations apply to applications filed before May 10, but still pending after May 10?

Yes. F-1 applications for STEM OPT, filed prior to May 10 and still pending after May 10, will subject the employer and student to the new requirements.

2. Are there any changes to the E-Verify requirement for STEM OPT employers?

As has long been the case, an employer must be registered and participating in E-Verify at the worksite where the  F-1 will  work during the  STEM  OPT period. The new regulation makes  no changes to this requirement.

3. Can F-1 Students previously granted 17-month OPT extensions now seek more OPT time under the new regulations?

Certain F-1 students will be eligible to apply for an additional 7 months of STEM OPT, provided that they meet the requirements of the new rule:
  • The F-1 must have at least 150 days remaining on the 17-month STEM OPT EAD on the day USCIS receives the application for a 7-month extension.
  • The employer and the F-1 must comply with the new rules, including having an approved training plan (see Questions 13-15) and a new I-20 endorsed for a STEM OPT extension by the student’s DSO.
  • The F-1 must file for a 7-month extension on Form I-765 between May 10, 2016 and August 8, 2016.  Applications for a 7-month extension will not be accepted after August 8.

4. What types of employment are permissible during the STEM OPT period?

The 24-month STEM OPT period is limited to certain employers and employment opportunities, as follows:
  • STEM OPT employer must be enrolled in and using the E-Verify program at the STEM OPT worksite.
  • A STEM OPT employer must have an Employment Identification Number (EIN).
  • The employment opportunity must be directly related to the student’s qualifying STEM degree.
  • There  must  be  an  employer-employee  relationship between  the  employer  and  the  F-1 student.  During the STEM OPT period, employment for a staffing agency and other labor- for-hire arrangement will not qualify.
  • Volunteer employment does not qualify.
  • An F-1 may not work concurrently for multiple employers during the STEM OPT period.

5. Do employers incur new obligations for current F-1 STEM OPT employees, approved under the prior regulations?

No. The new regulations apply only to F-1 OPT extensions, granted on or after May 10, 2016. 

6. Can I hire an employee with F-1 STEM OPT currently employed elsewhere?

Yes. An employee with F-1 on STEM OPT may change employers, so long as the new employment satisfies the new program requirements. A new STEM OPT Training Plan must be submitted to the student’s DSO within 10 days of the transfer start date. 

7. If the F-1 STEM OPT transferee employee holds OPT under the previous regulations, is the transfer subject to the new regulations?

Yes. All approvals of STEM OPT will be subject to the new regulations, discussed above. 

8. Does the F-1 employee have to be continuously employed to maintain status during the STEM OPT period?

No, an F-1 is not required to be continuously employed in order to maintain lawful status, but there are strict limits on unemployment during OPT.

In the initial 12-month period of OPT available to all F-1 graduates, no more than 90 days of unemployment is permitted. STEM graduates who obtain a 17-month extension of OPT will be granted an additional 30 days of unemployment during the STEM extension for an aggregate of 120 days.  Under the new rule, STEM graduates who obtain a 24-month extension of OPT will be granted an additional 60 days of unemployment, for an aggregate of 150 days. F-1s who apply for a 7-month extension of 17-month STEM OPT cannot exceed 120 days of unemployment while their EAD is pending; once it is approved, the unemployment limit increases to 150 days.

9. Is there a minimum amount of time the F-1 student must work during STEM OPT to maintain status?

F-1s on a STEM OPT extension must work at least 20 hours per week, except when they take leave under their employer’s standard leave policy.

10. What is the process for F-1 students on a 17-month STEM OPT extension who will apply for an additional 7 months of OPT?   Are they authorized to work while the request is being adjudicated?

USCIS will begin accepting applications for 7-month extensions of STEM OPT on May 10, 2016.  The following steps must be taken:
  • The F-1 and the employer prepare and execute a training plan on Form I-983.
  • The F-1 submits the completed training plan to the DSO, who will confirm that the degree and the I-983 training plan meet program requirements.
  • On or after May 10, the F-1 obtains a newly endorsed I-20 from the DSO recommending a 7- month STEM extension.   DSOs are not authorized to provide a STEM OPT endorsement under the new rule until May 10.
  • The EAD application is filed between May 10 and August 8, 2016.  The application must be submitted to USCIS within 60 days of the DSO’s endorsement.  As noted above, the F-1 must have at least 150 days remaining on the current EAD as of the date the application is received by USCIS
F-1 students seeking an additional 7 months of STEM OPT will not benefit from an automatic 180- day extension of work authorization following the expiration of their current EAD.   The new EAD must arrive before the old EAD expires, or else the F-1 will have a gap in work authorization.

Metí Una Aplicación Con Servicios De Inmigración (USCIS) Hace Mucho Tiempo Pero No He Escuchado Nada De Ellos—¿Qué Puedo Hacer?

Esto depende de que tipo de aplicación usted metió y cuanto tiempo ha estado pendiente. Por ejemplo, un permiso de trabajo generalmente debe tomar no más de 90 días en ser decidido desde la fecha en que usted mete la aplicación (); por ley, USCIS tiene que adjudicar aplicaciones de naturalización dentro de 120 días después de la entrevista o ellos corren el riesgo de ser demandados por el solicitante (8 C.F.R. § 247a.13(d)); y algunas otras aplicaciones tienen tiempos estimado de procesamiento que son publicados en la página web de Servicios de Inmigración (

Los tiempos estimados le pueden dar una buena idea que cuanto debe tardar una aplicación en ser decidida pero algunas veces, USCIS toma mucho más tiempo del estimado. Si esto ocurre, hay tres cosas que usted podría hacer: (1) preguntar en persona a su oficina local de USCIS; (2) contratar a un abogado para hacer una querella con un oficial de inmigración; y/o (3) demandar a USCIS en corte federal para forzarlos a tomar una decisión final en la aplicación.

Usted puede preguntar sobre el estatus de una aplicación pendiente en su oficinal local de USCIS por medio de una cita INFOPASS ( Estas citas son gratis pero deben hacerse con 2 semanas de anticipación y algunas veces no hay citas disponibles en ciertas locaciones. Si usted tiene una cita, tendrá la oportunidad de hablar con un oficial de inmigración sobre su caso. El oficial puede averiguar si alguien ha--o no--revisado su caso, si hay alguna decisión final, si su expediente está en determinada oficina, etc. Aunque no es necesario que contrate a un abogado para atender a una cita INFOPASS, es importante que usted deba articular al oficial de inmigración lo que usted piensa es el problema con su aplicación y qué resultado usted busca. Un abogado de inmigración sabe exactamente qué preguntar y dará seguimiento a la querella (sí, algunas veces toma más de una cita para que USCIS haga algo en una determinada aplicación).

La otra opción es contratar a un abogado para hacer una querella directamente con un oficial de inmigración o con un contacto que trabaje cerca junto con USCIS para averiguar cual es el problema con determinada aplicación. Estos contactos son personas dedicadas a resolver quejas relacionadas con servicios al consumidor.

Finalmente, cuando una aplicación lleva pendiente por más de un año (y en algunos casos, por muchos años), un abogado generalmente entabla una demanda en corte federal en contra de la agencia que no ha llegado a una decisión aún para que un juez fuerce a la agencia a adjudicar la aplicación. Esta demanda se llama en inglés Writ of Mandamus y puede tomar de un mes a varios meses. Porque éste es un proceso legal hecho en la corte federal, es buena idea contratar a un abogado para llevar a cabo esto--y tiene que ser un abogado que tenga licencia en el estado donde la demanda se va a meter.

Si usted tiene una aplicación que ha estado pendiente con Servicios de Inmigración por mucho tiempo y la agencia no le ha resuelto nada, por favor contacte a un abogado de inmigración para que él o ella pueda evaluar el siguiente paso en su caso.

Johanna Cochran, Abogada