Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

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

I Filed An Immigration Application With USCIS A Long Time Ago And I Have Not Heard Anything—What Can I Do?

It depends on the type of application you filed and how long it has been pending for. Some applications have definite processing times. For example, an application for a work permit (or Employment Authorization Document) should generally take no longer than 90 days from the date of filing (8 C.F.R. § 247a.13(d)); by law, USCIS must adjudicate naturalization applications within 120 days from the date of the interview or risk getting sued by an applicant (8 U.S.C. § 1447(b); and some other applications have estimated average processing times that are posted to the public on USCIS's website (

Estimated processing times can give you a good idea of how long it should take for USCIS to render a decision on your application but sometimes, USCIS takes much longer than their estimated processing times. If this happens, there are three things you could do: (1) inquire about your application in person at a local USCIS office; (2) hire an attorney to do an inquiry with a an attorney liaison who may have some insight on what is happening to your application; and/or (3) sue USCIS on federal court to issue a decision on your case.

You can inquire about a pending application at your local USCIS office by making an INFOPASS appointment ( These are free but need to be made 2 weeks in advance and sometimes there are just not enough appointments available at a certain location. If you do have an appointment, you will get the chance to talk to a USCIS officer. The officer may be able to find out if someone has—or has not—looked at your application, if a decision has been made, if your file is at that specific USCIS office, etc. Although no attorney is needed to make or attend an INFOPASS appointment, it is important to be able to articulate to the officer what you think the problem is with your application and what result you want. An attorney will know exactly what to ask and can properly follow up on the status of your inquiry (yes, sometimes it takes more than one appointment to get USCIS to act on a case).

The other option is to hire an attorney to inquire about the status of a pending application with a liaison. Liaisons are people who work closely with the agency to resolve customer complaints (like applications that have been pending for too long). These liaisons are often able to bring some light on the reasons why an application may not have a decision yet.

Finally, when an application has been pending for longer than a year (in many cases, for several years), attorneys can generally file suit against USCIS in federal court so that a judge can order the agency to issue a decision on the application. This suit is called a Writ of Mandamus and could take a few months or be as quick as a month. Because this is a legal process done in federal court, it is a good idea to hire an attorney to do this—and it has to be someone who is licensed to practice law in the particular state where you want to file suit.

If you have an application that has been pending for a very long time with USCIS and the agency has not been able to help you, please contact an immigration attorney so he or she can evaluate what your next step should be.

Johanna Cochran, Associate Attorney