Introduction

On December 27, 2016, the DHS extended the suspension of certain regulatory requirements for qualifying Nepalese students who were experiencing “severe economic hardship” as a direct result of the earthquake that occurred in Nepal on April 25, 2015.

On November 9, 2015, the Department of Homeland Security had suspended certain regulatory requirements for F1 nonimmigrant students from Nepal who were lawfully present in the United States in F1 nonimmigrant status on April 25, 2015, and who experienced severe economic hardship as a direct result of damage caused by the earthquake in Nepal on April 25, 2015. The rule allowed Nepalese F1 students to request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F1 student status. This rule was to be in effect until December 24, 2016. This original rule was published in the Federal Register at 80 FR 69237 [PDF version].

The extension took effect on December 27, 2016, and will remain in effect until June 24, 2018. The extension was published in the Federal Register at 81 FR 95161 [PDF version].

In this article, we will examine who is eligible to apply for benefits under the extension and what the extension means for qualifying F1 students from Nepal.

Eligibility Requirements

The new Federal Register notice applies to F1 students who:

1. Are lawful citizens of Nepal;
2. Were lawfully present in the United States in F1 nonimmigrant status on April 25, 2015;
3. Are currently enrolled in a school that is Student and Exchange Visitor Program (SEVP)-certified for the enrollment of F1 students;
4. Are currently maintaining F1 status; and
5. Are experiencing severe economic hardship as a direct result of damage caused by the earthquake in Nepal on April 25, 2015.

Any F1 student who meets the requirements may benefit. The new notice extends the special provisions for individuals who were already eligible under the original notice and who continue to meet the eligibility requirements. The Federal Register notice also applies to an F1 student who departs/departed the United States after the publication of the initial notice and who needs to obtain a new F1 visa before returning to the United States to continue an educational program. In such a case, the DSO must have properly notated the student’s SEVIS record. It is important to note that the new Federal Register notice does not apply to individuals from Nepal who were not in the United States on F1 nonimmigrant status on April 25, 2015.

The notices do not apply to F2 nonimmigrants.

Minimum Course Load Requirement for Beneficiaries

An undergraduate F1 student who receives off-campus employment authorization under the notice must remain registered for a minimum of six credit hours of instruction per academic semester. A graduate-level F1 student who receive on-campus or off-campus employment authorization under the terms of the notice must remain registered for a minimum of three credit hours of instruction per academic semester. A graduate or undergraduate F1 student who benefits under the notice may count up to the equivalent of one course or three credits per semester of online or distance education satisfying the minimum course load requirement.

The rules are slightly different for an F1 student enrolled in an English as a Second Language (ESL) program. If the ESL program is a credit hour program, the eligible F1 student may take a reduced course load. The minimum requirements are 6 credit hours of instruction per academic semester at the undergraduate level and 3 credit hours of instruction per academic semester at the graduate level. However, for ESL students, credits coming from online or distance education do not count toward the minimum requirement.

If the F1 student is engaged in an ESL program with a course load measured in clock hours, he or she must always take at least one-half of what constitutes a normal “full course of study” for the student. For programs where the predominant part of the course of study consists of classroom instruction, the student’s course load must consist of a minimum of nine hours of instruction per week. For programs where the predominant part of the course of study consists of laboratory instruction, the reduced course load must consist of a minimum of eleven hours per week. Credits that come from online or distance education do not count toward the minimum. The student must also be making progress toward completing the course of study.

While F1 elementary school, middle school, and high school students may have the employment restrictions suspended, they are not eligible for a reduction in course load.

Employment Benefits

The notice suspends regulatory employment restrictions for F1 students covered by the notice. If approved by the DSO, a student may work on campus for more than 20 hours per week while school is in session, so long as he or she continues to meet the minimum course load requirements. It is important to note that the notice does not require a DSO to approve a course load reduction in conjunction with suspending certain employment rules.

If approved for benefits under the notice, certain rules pertaining to F1 off-campus employment may be suspended. First, if approved, the student may engage in off-campus employment prior to accruing a full academic year in F1 status. Secondly, the F1 student would not have to demonstrate that the acceptance of employment would not interfere with his or her carrying a full course of study. Thirdly, the student may engage in more than 20 hours per week off-campus employment while school is in session.

As we noted, F1 elementary school, middle school, and high school students are eligible to benefit under the Federal Register notices. However, while the notices permit such students to have the employment restrictions for F1 students suspended, they do not supersede any applicable federal or state laws pertaining to the employment of minors.

Applying for Benefits under the Notices

In order to seek employment authorization for off-campus employment with a reduced course load, the F1 student must file the Form I-765, Application for Employment Authorization. The F1 student may seek a fee waiver if he or she is unable to pay the filing fee [see article].

In order to establish eligibility for benefits, the F1 student must demonstrate the following to his or her DSO:

1. The employment is necessary to avoid severe economic hardship; and
2. The hardship is resulting from the April 25, 2015 earthquake in Nepal.

If the DOS agrees that the student should receive employment authorization, he or she will recommend approval to the United States Citizenship and Immigration Services (USCIS). The DOS does so by entering a statement in the student’s SEVIS record, which will then appear on the student’s Form I-20.

If the DSO approves the application, the student must file the Form I-20 and Form I-765 in accordance with the instructions on the Form I-765. The student may begin working off campus only after receiving his or her EAD from the USCIS.

Relationship to TPS

Certain F1 students from Nepal who are eligible to benefit under the notices may also be eligible for Temporary Protected Status (TPS) [see article]. An F1 student may seek and procure TPS benefits and benefits for F1 students under the notices. An F1 student may also maintain TPS so long as he or she follows the rules of both statuses [see article].

If an F1 student is granted TPS and a TPS EAD, he or she must still follow the rules of F1 status in order to maintain such status. This means that if an F1 student procures a TPS-related EAD, he or she would not automatically be eligible for a reduced course load under the notices or to engage in on-campus or off-campus employment in violation of the regular rules of F1 status. However, such an F1 student may apply for benefits under the notices from his or her DSO and, if granted, be permitted to carry a reduced course load and work using his or her TPS-related EAD.

In short, it is important to remember that F1 student status and TPS are distinct, and that being granted TPS does not mean that an F1 student from Nepal is automatically eligible for the suspension of certain F1 regulations as provided in the two Federal Register notices.

Conclusion

The new Federal Register notice extends certain benefits for F1 students from Nepal who continue to face severe economic hardship as a result of the 2015 earthquake in the country. A student who is seeking to benefit under the terms of the notice should consult with his or her DSO for an assessment. An F1 student may consult with an experienced immigration attorney for guidance on establishing eligibility or for any other issues relating to F1 status. A student is well-advised to consult with an experienced immigration attorney if he or she is also maintaining TPS.