USCIS brings clarity for international students who switch to EB-5 -

USCIS brings clarity for international students who switch to EB-5 Staff

By Anayat Durrani

The U.S. Citizenship and Immigration Services (USCIS) has issued new policy guidance for F and M student nonimmigrant visa classifications.

The updated guidance brings more clarity to international students and U.S. educational institutions on issues such as eligibility requirements, school transfers, practical training, and on- and off-campus employment. The USCIS’ updated policy manual consolidates existing policy, is more transparent, and outlines easier to follow regulations for international students, universities, and employers.

The guidance clarifies that F and M students must have a foreign residence they don’t plan to abandon, but may be the beneficiaries of permanent labor certification applications or immigrant visa petitions, provided they demonstrate their intent to depart after a temporary period of stay.

An F-1 visa is issued to international students pursuing studies at an accredited college or university. The M classification is for international students attending established vocational or other recognized nonacademic programs.

“USCIS’s policy guidance is helpful because it reiterates that F-1 students can have a green card application in process as long as they continue to have a foreign residence that they have no intention of relinquishing,” says Chad C. Blocker, a partner at Fragomen.

This means international students can switch from an F-1 to an EB-5 visa if they prove they have a foreign residency they don’t plan to abandon. International students already in the U.S. on an F-1 visa can adjust their status to obtain a green card if they qualify to participate in the EB-5 Investor Visa program.

“To that end, it supports the fact that an F-1 visa holder can start the EB-5 green card process without concern that their F-1 visa will be in jeopardy, so long as they continue to maintain a foreign residence,” says Blocker.

EB-5 visa helps ease F-1 visa restrictions to remain in the U.S.

The U.S. is the number one destination for international students, from Ivy Leagues to the UCs and other prestigious colleges and universities nationwide. Most students enter the U.S. on F-1 visas and plan to remain and work there. However, the F-1 visa has several restrictions.

The EB-5 visa pathway is a popular option that can sidestep the challenges F-1 students endure and can grant permanent U.S. resident status.

“Two pieces of very good news there,” says Varun Singh, managing director of XIPHIAS Investment Migration Inc. “First, it only solidifies a student’s ability to have a permanent processing or EB-5 petitions without causing issue. The second point about OPT students working for a startup makes things dramatically simpler.”

Under the updated guidance, F-1 students seeking an extension of optional practical training (OPT) based on their degree in a science, technology, engineering, and mathematics (STEM) field can now be employed by startups. This is allowed only if the employer adheres to the outlined provisions: the training plan requirements, has good standing with E-Verify, and offers compensation equal to or greater than that provided to similarly employed U.S. workers, among other requirements.

“Before, if it was a startup, they needed a detailed training plan that made things more difficult than doing OPT with more established organizations,” says Singh.

Designated STEM majors receive a 36-month total of OPT, but it was previously unclear if students could use their STEM OPT to work at startups, until now.

A little more than 1.05 million international students enrolled at U.S. higher education institutions and were on OPT in the 2022/23 academic year, according to Open Doors 2023 Report on International Educational Exchange.

Welcome clarity for international students with pending EB-5 applications

Singh notes that with a student visa, there is no issue if a student remains in the U.S. the entire time.

“Upon traveling, if they have to interact with a consulate, Department of State, or upon reentry, Customs and Border Patrol, those agencies have broad discretion to make decisions based on what they think is visa abuse,” says Singh. “CBP is within DHS, so they follow their guidance. State is a completely separate department, so they aren’t bound by DHS guidance. This creates greater clarity for a student entering the U.S. if they have an EB-5 petition pending, or a perm pending.”

Likewise, Bruna Canto, managing director for FirstPathway Partners, says the recently updated policy guidance for international students “now gives immigration officers the discretion to allow non-immigrants—tourists and international students—to enter the United States despite them having a pending immigrant petition.”

While she notes that immigration officers can still deny a person from entering for other reasons, having a pending immigrant petition shouldn’t be cause to deny a non-immigrant to enter the U.S.

“This gives EB-5 investors filing via consular processing more assurance that they will be able to enter the United States with their existing non-immigrant visas while waiting on their I-526E approval,” says Canto.

Blocker explains that the updated guidance clarifies the respective roles of U.S. Immigration and Customs Enforcement (ICE) and USCIS. 

“In short, ICE helps maintain the SEVIS database that generates the necessary Form I-20 for all international students while USCIS is responsible for adjudicating any applications for employment authorization, change of status (e.g., to H-1B), extension of stay, and reinstatement of status for F-1 students and their dependents in the U.S. Because both agencies have a role in the F-1 program, the guidance further defines their respective roles,” says Blocker.

Blocker notes that the guidance also applies to M-1 visa holders.

“However, the M visa category is lightly used compared to the F-1 visa category,” says Blocker. “There are an estimated 1.1 million F-1 visa holders in the U.S.”

According to the Open Doors report, China, India, and South Korea sent the most students to the U.S. in 2023. The top five universities with the largest number of international students are New York University, Northeastern University, Columbia University, Arizona State University, and the University of Southern California, per the report.

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