Virginia, US
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| Chad Ellsworth

Stay While You Wait: EB-5 and the F-1 OPT STEM Extension

Many of us in the EB-5 industry are well aware of the long wait times for Chinese investors and any dependents to obtain their conditional green cards due to immigrant visa retrogression. This wait can be extremely long as the current backlog is thought to be 5 plus years for Chinese Citizens.

While Chinese EB-5 applicants wait for their I-526 petitions to be approved or for their immigrant visa numbers to become current, those who are already in the United States or seeking to enter for undergraduate or graduate studies are often left without many options to enter or remain within the United States. One option that many EB-5 investors or their dependents can now possibly explore is a recent regulation issued by the Department of Homeland Security (“DHS”) which allows certain F-1 students to remain and work for a longer period of time in the United States including up to 3 years of post-graduation employment while in F-1 status.

Earlier this year on March 11, 2016, the DHS issued a new rule extending the OPT time period for Science, Technology, Engineering and/or Math or related fields (“STEM”) students. Generally, all students on F-1 visas can apply for up to 12-months of Optional Practical Training (“OPT”) to work and train in the United States post-graduation. Historically, for those students who obtained a STEM degree or completed requirements towards a qualifying STEM degree, they could take advantage of an additional 17-month (or a total of 29 months) of post-completion OPT. Now under this new rule, DHS extended the STEM OPT period from 17 months to 24 months for a total of 3 years of OPT work authorization. The extension up to 3 years is available to either qualifying F-1 students who have not started their STEM OPT extensions or to F-1 students who are already on a 17-month STEM OPT.

On May 10, 2016, the United States Citizenship and Immigration Services (“USCIS”) began accepting employment authorization document (“EAD”) applications under this new rule. For those who are currently on a 17-month STEM OPT extension and want to take advantage of the additional 7 months, now is the time to act as EAD applications for the additional 7-month extension must be filed with USCIS immediately, by August 8, 2016.

For those who have not yet applied, the STEM OPT extension may a great option for Chinese EB-5 applicants who want to enter or continue working in the United States while they wait for their immigrant visa number to become available. While the F-1 visa requires strict nonimmigrant intent or an intention to depart the United States at the conclusion of a foreign nationals academic studies/OPT period, in our experience U.S. Consulate’s in China have been fairly liberal in interpreting the “intent” issue for foreign nationals in the EB-5 application process but subject to retrogression.   Specifically, most consular officials have been issuing F-1 visa stamps to Chinese students with pending or approved I-526 petitions provided they can demonstrate significant financial ties to China and an intention to properly depart the United States and attend the immigrant visa interview in China once the monthly State Department Visa Bulletin is current. While there is always a risk of an F-1 denial on the intent issue with a pending or approved permanent residence application this new rule is increasingly an alternative for students who because of retrogression otherwise would need to remain outside the United States for many years while their EB-5 application is processed. Further, taking advantage of this new rule can help lessen the disruptive impact of having to leave the United States during the extensive EB-5 waiting period for Chinese Citizens.

If you would like to learn more about the EB-5 Immigrant Investor Program or to determine your eligibility for the recent STEM OPT extension, please contact me at Cellsworth@Fragomen.com or at 212-230-2826.