Immigration Visa Attorney Blog

On 9 October 2011, Governor Jerry Brown of California signed the California Dream Act. This bill permits undocumented immigrants to attend California public university and community colleges, providing them access to state financial aid. Only three states in the USA permit undocumented immigrants to qualify for state financial aid for college: California, New Mexico, and Texas.

To qualify, students must graduate from a California high school, after having attended school in California for a minimum of three years. The student must also sign a declaration that they are in the process of adjusting or legalizing his/her immigration situation. It is not yet known what exactly students will be attesting to when they say they are "in the process" of legalizing.

Immigrants should be very clear: the California DREAM Act is for undocumented immigrant students wishing to go to university in this state. The California DREAM Act does NOT provide legal immigration status, does NOT make the student immune from removal or deportation, does NOT permit the student to work in the absence of an Employment Authorization Document from the US immigration authorities, and does NOT permit the student to travel out of the USA and to return.

The California DREAM Act does not address the need for comprehensive immigration reform on the Federal level.i

To be sure, the DREAM Act is a practical, realistic way to address the unarguable fact that so many undocumented immigrants now reside in California, and it is not possible to remove them all. If these students get an education, it is a long-term benefit to California. --jcf

Last weekend, Department of Homeland Security Secretary Janet Napolitano announced the launch of a new USCIS website for students looking to study in the US. The website's name? Yup, "Study in the States." The new website which will be of use to F-1 and M-1 hopefuls, is aimed at disseminating information to foreign students, as well as serving as an interagency resource hub between DHS and it's partner organizations. Information pertaining to J-1 exchange visitors and trainees is still relegated to the US Department of State.

Study in the States provides information on how prospective students should utilize the current version of SEVIS, the Student and Exchange Visitor Information System program. It also tells us what we can expect with the highly anticipated "paperless" SEVIS II, which may launch "in the near future."

There's also general information useful to new immigrants such as how to obtain a social security number, how to enroll your children in Kindergarten through 12th grade, and how to get a driver's license. The attorneys at Fong & Chun, LLP applaud the launch of this user-friendly website and what we hope is not only USCIS acknowledgment that foreign students coming to pursue degrees in the United States represent some of the best and the brightest talents in the world...but that these are the students who can and will someday continue to drive the innovation, entrepreneurship, and values known throughout generations as, the American Dream. --ecf

What is the H-1B cap gap?? F-1 students seeking first-time H-1B status are often in some period of OPT (optional practical training) when submitting an H-1B petition. "H1B Cap gap" is the term that USCIS refers to as an extension of either the F-1 student's status and/or the student's OPT period before October 1 of each year.

Here are some nuggets of useful information for students seeking clarification of how OPT can be properly utilized and extended with the H-1B cap gap:

If a cap gap H-1B applicant receives an H-1B denial at anytime (before or after October 1), s/he cannot continue working but is still allowed the 60-day grace period to depart the US as long as the H-1B was not denied or revoked due to fraud or misrepresentation

F-1 students whose OPT has already expired but are able to file an H-1B change of status petition during the 60-day grace period are allowed to remain in the United States under F-1 status but will not become employment authorized again

F-1 students who have STEM OPT employment authorization may apply for a a STEM OPT extension while he or she is within the cap-gap extension period.

If you have questions about how to apply for an H-1B petition and whether or not you can extend your OPT through the H-1B cap gap, give the business immigration attorneys a call at Fong & Chun, LLP. We can help you mind the gap! ---ecf