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< Back to current issue of Immigration Daily

 
[Federal Register: September 15, 2010 (Volume 75, Number 178)]
[Notices]               
[Page 56120-56123]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se10-100]                         
 
=======================================================================
-----------------------------------------------------------------------
 
DEPARTMENT OF HOMELAND SECURITY
 
[Docket No. ICEB-2010-0003]
RIN 1653-ZA01
 
 
Employment Authorization for Haitian F-1 Nonimmigrant Students 
Experiencing Severe Economic Hardship as a Direct Result of the January 
12, 2010 Earthquake in Haiti
 
AGENCY: U.S. Immigration and Customs Enforcement; DHS.
 
ACTION: Notice of suspension of applicability of certain requirements.
 
-----------------------------------------------------------------------
 
SUMMARY: This notice informs the public of the suspension of certain 
regulatory requirements for F-1 nonimmigrant students whose country of 
citizenship is Haiti and who are experiencing severe economic hardship 
as a direct result of the January 12, 2010 earthquake in Haiti. The 
Department of Homeland Security (DHS) is taking action to provide 
relief to these F-1 students so they may obtain employment 
authorization, work an increased number of hours while school is in 
session, and reduce their course load, while continuing to maintain 
their F-1 student status. F-1 students who are granted employment 
authorization by means of this notice will be deemed to be engaged in a 
``full course of study'' for the duration of their employment 
authorization, provided that they satisfy the minimum course load 
requirement described in this notice.
 
DATES: This notice is effective September 15, 2010 and will remain in 
effect until July 22, 2011.
 
FOR FURTHER INFORMATION CONTACT: Louis Farrell, Director, Student and 
Exchange Visitor Program; MS 5600, U.S. Immigration and Customs 
Enforcement; 500 12th Street, SW., Washington, DC 20536-5600; (703) 
603-3400. This is not a toll-free number. Program information can be 
found at http://www.ice.gov/sevis/.
 
SUPPLEMENTARY INFORMATION: 
 
What action is DHS taking under this notice?
 
    The Secretary of Homeland Security is exercising her authority 
under 8 CFR 214.2(f)(9) to temporarily suspend the applicability of 
certain requirements governing on-campus and off-campus employment. F-1 
students granted employment authorization by means of this notice will 
be deemed to be engaged in a ``full course of study'' for the duration 
of their employment authorization if they satisfy the minimum course 
load described in this notice. See 8 CFR 214.2(f)(6)(i)(F).
 
Who is covered by this notice?
 
    This notice applies exclusively to F-1 students whose country of 
citizenship is Haiti and who were lawfully present in the United States 
in F-1 nonimmigrant status on January 12, 2010 under section 
101(a)(15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 
1101(a)(15)(F)(i) and (1) are enrolled in an institution that is 
Student and Exchange Visitor Program (SEVP)-certified for enrollment of 
F-1 students; (2) are currently maintaining F-1 status; and (3) are 
experiencing severe economic hardship as a direct result of the January 
12, 2010 earthquake in Haiti.
    This notice applies both to undergraduate and graduate students, as 
well as elementary school, middle school, and high school students. The 
notice, however, applies differently to elementary school, middle 
school, and high school students, as discussed in Question, ``Does this 
notice apply to elementary school, middle school, and high school 
students in F-1 status?''
    F-1 students covered by this notice who transfer to other academic 
institutions that are SEVP-certified for enrollment of F-1 students 
remain eligible for the relief provided by means of this notice.
 
Why is DHS taking this action?
 
    DHS is taking action to provide relief to F-1 students whose 
country of citizenship is Haiti and who are experiencing severe 
economic hardship as a direct result of the January 12, 2010 earthquake 
in Haiti. These students may obtain employment authorization, work an 
increased number of hours while school is in session, and reduce their 
course load, while continuing to maintain their F-1 student status.
    Haiti has limited resources to cope with a natural disaster like 
this earthquake, which was the strongest one to strike the island 
nation in 200 years. The country's critical infrastructure was severely 
damaged, and many government offices, schools, businesses, and 
hospitals were completely destroyed. Millions of Haitians have been 
displaced from their homes and must depend on international aid 
organizations to receive basic necessities such as food and water.
    Approximately 1,127 F-1 students whose country of citizenship is 
Haiti are enrolled in schools in the United States. Given the extent of 
the destruction and humanitarian challenges in Haiti, affected F-1 
students whose primary means of financial support comes from family 
members in Haiti may now need to be exempted from the normal student 
employment requirements to be able to continue their studies in the 
United States. Without employment authorization, these students may 
lack the means to meet basic living expenses.
 
What is the minimum course load requirement set forth in this notice?
 
    Undergraduate students who are granted on-campus or off-campus 
employment authorization under this notice must remain registered for a 
minimum of six semester/quarter hours of instruction per academic term. 
Graduate-level F-1 students who are granted on-campus or off-campus 
employment authorization under this notice must remain registered for a 
minimum of three semester/quarter hours of instruction per academic 
term. See 8 CFR 214.2(f)(5)(v). In addition, F-1 students (both 
undergraduate and graduate) granted on-campus or off-campus employment 
authorization under this notice may count up to the equivalent of one 
class or three credits per session, term, semester, trimester, or 
quarter of online or distance education toward satisfying this minimum 
course load requirement, unless the F-1 student's course of study is in 
a language study program. See 8 CFR 214.2(f)(6)(i)(G). Elementary 
school, middle school, and high school students must maintain ``class 
attendance for not less than the minimum number of hours a week 
prescribed by the school for normal progress toward graduation,'' as 
required under 8 CFR 214.2(f)(6)(i)(E).
 
May Haitian F-1 students who already have on-campus or off-campus 
employment authorization benefit from the suspension of regulatory 
requirements under this notice?
 
    Yes. Haitian F-1 students who already have on-campus or off-campus 
employment authorization may benefit under this notice, which suspends
 
[[Page 56121]]
 
regulatory requirements relating to the minimum course load requirement 
under 8 CFR 214.2(f)(6)(i)(A) and (B) and the employment eligibility 
requirements under 8 CFR 214.2(f)(9) as specified in this notice. Such 
Haitian F-1 students may benefit without having to apply for a new Form 
I-766, Employment Authorization Document (EAD). To benefit from this 
notice, the student must request that his or her Designated School 
Official (DSO) enter the following statement in the remarks field of 
the SEVIS student record, which will be reflected on the student's Form 
I-20:
 
    Approved for more than 20 hours per week of [DSO must insert 
``on-campus'' or ``off-campus,'' depending upon the type of 
employment authorization the student already has] employment 
authorization and reduced course load under the Special Student 
Relief authorization from [DSO must insert the beginning date of 
employment] until [DSO must insert the student's program end date, 
July 22, 2011, or the current EAD expiration date (if the student is 
currently working off campus), whichever date comes first].
 
Must the F-1 student apply for reinstatement after expiration of this 
special employment authorization if the student reduces his or her full 
course of study?
 
    No. F-1 students who are granted employment authorization under 
this notice will be deemed to be engaged in a ``full course of study'' 
for the duration of their employment authorization, provided that 
qualifying undergraduate level F-1 students remain registered for a 
minimum of six semester/quarter hours of instruction per academic term, 
and qualifying graduate level F-1 students remain registered for a 
minimum of three semester/quarter hours of instruction per academic 
term. See 8 CFR 214.2(f)(5)(v) and (f)(6)(i)(F). Such students will not 
be required to apply for reinstatement under 8 CFR 214.2(f)(16) if they 
are otherwise maintaining F-1 status.
 
Will F-2 dependents (spouse or minor children) of F-1 students covered 
by this notice be eligible to apply for employment authorization?
 
    No. An F-2 spouse or minor child of an F-1 student is not 
authorized to work in the United States and, therefore, may not accept 
employment under the F-2 status. See 8 CFR 214.2(f)(15)(i).
 
Will the suspension of the applicability of the standard student 
employment requirements apply to aliens who are granted an F-1 visa 
after this notice is published in the Federal Register?
 
    No. The suspension of the applicability of the standard regulatory 
requirements only applies to those F-1 students whose country of 
citizenship is Haiti and who were lawfully present in the United States 
in F-1 nonimmigrant status on January 12, 2010 under section 
101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i) and (1) are 
enrolled in an institution that is Student and Exchange Visitor Program 
(SEVP) certified for enrollment of F-1 students; (2) are currently 
maintaining F-1 status; and (3) are experiencing severe economic 
hardship as a direct result of the January 12, 2010 earthquake in 
Haiti.
    F-1 students who do not meet these requirements do not qualify for 
the suspension of the applicability of the standard regulatory 
requirements, even if they are experiencing severe economic hardship as 
a direct result of the January 12, 2010 earthquake in Haiti.
 
Does this notice apply to an F-1 student who departs the United States 
after this notice is published in the Federal Register and who needs to 
obtain a new F-1 visa before he or she may return to the United States 
to continue his or her educational programs?
 
    Yes, provided that the DSO has properly notated the student's SEVIS 
record, which will then appear on the student's Form I-20. Subject to 
the specific terms of this notice, the normal rules for visa issuance 
(including those related to public charge and nonimmigrant intent) 
remain applicable to nonimmigrants that need to apply for a new F-1 
visa in order to continue their educational programs in the United 
States.
 
Does this notice apply to elementary school, middle school, and high 
school students in F-1 status?
 
    This notice does not reduce the required course load for elementary 
school, middle school, or high school students in F-1 status. Such 
students must maintain the minimum number of hours of class attendance 
per week prescribed by the school for normal progress toward 
graduation. See 8 CFR 214.2(f)(6)(i)(E).
    Eligible F-1 students from Haiti enrolled in an elementary school, 
middle school, or high school do benefit from the suspension of the 
requirement in 8 CFR 214.2(f)(9)(i) that limits on-campus employment to 
20 hours per week while school is in session. DHS notes, however, that 
the suspension of this requirement is solely for DHS purposes of 
determining valid F-1 status. Nothing in this notice affects the 
applicability of federal and state labor laws limiting the employment 
of minors. With regard to off-campus employment, elementary school, 
middle school, and high school students benefit from the suspension of 
the requirement that a student must have been in F-1 status for one 
full academic year in order to be eligible for off-campus employment 
and the requirement that limits a student's work authorization to no 
more than 20 hours per week of off-campus employment while school is in 
session. With regard to on-campus employment, nothing in this notice 
affects the applicability of federal and state labor laws limiting the 
employment of minors. The suspension of certain regulatory requirements 
related to employment through this notice is applicable to all eligible 
F-1 students--regardless of educational level--pursuant to the 
regulations at 8 CFR 214.2(f)(9)(i) and (f)(9)(ii).
 
On-Campus Employment Authorization
 
Will F-1 students who are granted on-campus employment authorization 
under this notice be authorized to work more than 20 hours per week 
while school is in session?
 
    Yes. For F-1 students covered in this notice, the Secretary is 
suspending the applicability of the requirement in 8 CFR 214.2(f)(9)(i) 
that limits an F-1 student's on-campus employment to 20 hours per week 
while school is in session. A student whose country of citizenship is 
Haiti and who is experiencing severe economic hardship as a direct 
result of the January 12, 2010 earthquake in Haiti is authorized to 
work more than 20 hours per week while school is in session if his or 
her DSO has entered the following statement in the remarks field of the 
SEVIS student record, which will be reflected on the student's Form I-
20 Certificate of Eligibility for Nonimmigrant (F-1) Student:
    Approved for more than 20 hours per week of on-campus 
authorization and reduced course load, under the Special Student 
Relief authorization from [DSO must insert the beginning date of 
employment] until [DSO must insert the student's program end date or 
July 22, 2011, whichever date comes first].
 
    To obtain on-campus employment authorization, the student must 
demonstrate to his or her DSO that the employment is necessary to avoid 
severe economic hardship that is directly resulting from the earthquake 
in
 
[[Page 56122]]
 
Haiti. A student authorized by his or her DSO to engage in on-campus 
employment by means of this notice does not need to make any filing 
with U.S. Citizenship and Immigration Services (USCIS).
    The standard rules permitting full-time work on-campus when school 
is not in session or during school vacations apply. See 8 CFR 
214.2(f)(9)(i).
 
Will F-1 students who are granted on-campus employment authorization 
under this notice be authorized to reduce their normal course load and 
still maintain their F-1 nonimmigrant status?
 
    Yes. F-1 students who are granted on-campus employment 
authorization under this notice will be deemed to be engaged in a 
``full course of study'' for the purpose of maintaining their F-1 
status for the duration of their on-campus employment if they satisfy 
the minimum course load requirement described in this notice. See 8 CFR 
214.2(f)(6)(i)(F).
    However, the authorization for reduced course load is solely for 
DHS purposes of determining valid F-1 status. Nothing in this notice 
mandates that a school allow a student to take a reduced course load if 
the reduction would not meet the school's minimum course load 
requirement for continued enrollment.\1\
---------------------------------------------------------------------------
 
    \1\ Minimum course load requirement for enrollment in a school 
must be established in a publicly available document (e.g., catalog, 
Web site, or operating procedure), and it must be a standard 
applicable to all students (U.S. citizens and foreign students) 
enrolled at the school.
---------------------------------------------------------------------------
 
Off-Campus Employment Authorization
 
What regulatory requirements does this notice temporarily suspend 
relating to off-campus employment?
 
    For F-1 students covered by this notice, as provided under 8 CFR 
214.2(f)(9)(ii)(A), the Secretary is suspending the following 
regulatory requirements relating to off-campus employment:
    (a) The requirement that a student must have been in F-1 status for 
one full academic year in order to be eligible for off-campus 
employment;
    (b) The requirement that an F-1 student must demonstrate that 
acceptance of employment will not interfere with the student's carrying 
a full course of study; and
    (c) The requirement that limits a student's work authorization to 
no more than 20 hours per week of off-campus employment while school is 
in session.
 
Will F-1 students who are granted off-campus employment authorization 
under this notice be authorized to reduce their normal course load and 
still maintain their F-1 nonimmigrant status?
 
    Yes. F-1 students who are granted employment authorization by means 
of this notice will be deemed to be engaged in a ``full course of 
study'' for purpose of maintaining their F-1 status for the duration of 
their employment authorization if they satisfy the minimum course load 
requirement described in this notice. See 8 CFR 214.2(f)(6)(i)(F). 
However, the authorization for reduced course load is solely for DHS 
purposes of determining valid F-1 status. Nothing in this notice 
mandates that a school allow a student to take reduced course load if 
such reduced course load would not meet the school's minimum course 
load requirement.\2\
---------------------------------------------------------------------------
 
    \2\ Minimum course load requirement for enrollment in a school 
must be established in a publicly available document (e.g., catalog, 
Web site or operating procedure), and it must be a standard 
applicable to all students (U.S. citizens and foreign students) 
enrolled at the school.
---------------------------------------------------------------------------
 
How may Haitian F-1 students obtain employment authorization for off-
campus employment with a reduced course load under this notice?
 
    F-1 students must file a Form I-765 Application for Employment 
Authorization with USCIS if they wish to apply for off-campus 
employment authorization based on severe economic hardship resulting 
from the January 12, 2010 earthquake in Haiti. Filing instructions are 
located at: http://www.uscis.gov/i-765. If an F-1 student has obtained 
an EAD as a result of applying for Temporary Protected Status (TPS) for 
Haiti or is in the process of seeking a TPS EAD, please see Question, 
``May Haitian F-1 students who already have on-campus or off-campus 
employment authorization benefit from this notice?'' An F-1 student may 
use his or her TPS EAD to work, but in order to maintain F-1 status 
must comply with other requirements of the school's DSO as described.
    Fee considerations. Submission of a Form I-765 currently requires 
payment of a $340 fee. If the applicant is unable to pay the fee, he or 
she must submit a written affidavit or unsworn declaration requesting a 
waiver of the fee and including the statement: ``I declare under 
penalty of perjury that the foregoing is true and correct.'' See http: 
//www.uscis.gov/feewaiver. The submission must include an explanation 
of why he or she should be granted the fee waiver and the reasons for 
his or her inability to pay. See 8 CFR 103.7(c).
    Supporting documentation. An F-1 student seeking off-campus 
employment authorization due to severe economic hardship must 
demonstrate to the DSO at the school where the F-1 student is enrolled 
that this employment is necessary to avoid severe economic hardship and 
that the hardship is resulting from the January 12, 2010 earthquake in 
Haiti. If the DSO agrees that the student should receive such 
employment authorization, he or she must recommend application approval 
to USCIS by entering the following statement in the remarks field of 
the student's SEVIS record, which will then appear on the student's 
Form I-20:
 
    Recommended for off-campus employment authorization in excess of 
20 hours per week and reduced course load under the Special Student 
Relief authorization from the date of the USCIS authorization noted 
on Form I-766 until [DSO must insert the program end date or July 
22, 2011, whichever date comes first].
 
    The student must then file the properly endorsed Form I-20 and Form 
I-765, according to the instructions for the Form I-765. The student 
may begin working off campus only upon receipt of the EAD from USCIS.
    DSO recommendation. In making a recommendation that a student be 
approved for Special Student Relief, the DSO certifies that:
    (a) The student is in good academic standing as determined by the 
DSO;
    (b) The student is a citizen of Haiti and is experiencing severe 
economic hardship as a direct result of the January 12, 2010 earthquake 
in Haiti, as documented on the Form I-20;
    (c) The student is carrying a full course of study at the time of 
the request for employment authorization;
    (d) The student will be registered for the duration of his or her 
authorized employment for a minimum of six semester or quarter hours of 
instruction per academic term if the student is at the undergraduate 
level, or for a minimum of three semester or quarter hours of 
instruction per academic term if the student is at the graduate level; 
and
    (e) The off-campus employment is necessary to alleviate severe 
economic hardship to the individual caused by the January 12, 2010 
earthquake in Haiti.
    Processing. To facilitate prompt adjudication of the student's 
application for off-campus employment authorization under 8 CFR 
214.2(f)(9)(ii)(C), the student should:
    (a) Ensure that the application package includes: (1) A completed 
Form I-765; (2) the required fee or properly
 
[[Page 56123]]
 
documented fee waiver request as defined in 8 CFR 103.7(c); and (3) a 
signed and dated copy of the student's Form I-20 with the appropriate 
DSO recommendation, as previously described in this notice; and
    (b) Send the application in an envelope which is clearly marked on 
the front of the envelope, bottom right-hand side, with the phrase 
``SPECIAL STUDENT RELIEF.'' Failure to include this notation may result 
in significant processing delays. If USCIS approves the student's Form 
I-765, the USCIS official will send the student a Form I-766 Employment 
Authorization Document (EAD) as evidence of his or her employment 
authorization. The EAD will contain an expiration date that does not 
exceed the earlier of the student's program end date or July 22, 2011.
 
TPS Considerations
 
Can an F-1 student apply for TPS and for benefits under this notice at 
the same time?
 
    Yes. An F-1 student who has not yet applied for TPS or for student 
relief under this notice has two options. Under the first option, the 
student may file the TPS application according to the instructions in 
the Federal Register Notice designating Haiti for TPS. See 75 FR 3476. 
All TPS applicants must file a Form I-821 Application for Temporary 
Protected Status, and Form I-765, regardless of whether they are 
seeking employment authorization under TPS. The fee (or a properly 
documented fee waiver request) for Form I-765 is required only if the 
applicant is seeking employment authorization under TPS. See 8 CFR 
244.6. If the student files a TPS application and requests employment 
authorization under TPS, once the student receives the TPS-related EAD, 
the student may go to his/her DSO and ask the DSO to make the required 
entry in SEVIS, issue an updated Form I-20, as described in this 
notice, and note that the student has been authorized to carry a 
reduced course load and is working pursuant to a TPS-related EAD. So 
long as the student maintains the minimum course load described in this 
notice, does not otherwise violate his/her nonimmigrant status as 
provided under 8 CFR 214.1(g), and maintains his or her TPS, then the 
student maintains F-1 status and TPS concurrently. Under the second 
option, the student may apply for an EAD under student relief. In this 
instance, Form I-765 must be filed with the location specified in the 
filing instructions. At the same time, the student may file a separate 
TPS application, but must submit the TPS filing according to the 
instructions provided in the Federal Register Notice designating Haiti 
for TPS. Because the student has already applied for employment 
authorization under student relief, the Form I-765 submitted as part of 
the TPS application is without fee. Again, the student will be able to 
maintain F-1 status and TPS.
 
When a student applies simultaneously for TPS status and benefits under 
this notice, what is the minimum course load requirement while an 
application for employment authorization is pending?
 
    The student must maintain normal course load requirements for a 
full course of study unless or until he or she is granted employment 
authorization under this notice. TPS-related employment authorization, 
by itself, does not authorize a student to drop below 12 credit hours. 
Once approved for ``severe economic hardship'' employment 
authorization, the student may drop below 12 credit hours (with a 
minimum of six semester or quarter hours of instruction per academic 
term if the student is at the undergraduate level, or for a minimum of 
three semester or quarter hours of instruction per academic term if the 
student is at the graduate level). See 8 CFR 214.2(f)(6), 
214.2(f)(5)(v), 214.2(f)(9)(i) and (ii).
 
If a student has been approved for employment authorization under TPS, 
how does he or she apply for authorization to take a reduced course 
load under this notice?
 
    There is no further application process. The student only needs to 
demonstrate economic hardship caused by the January 12, 2010 earthquake 
in Haiti to his or her DSO and receive the DSO recommendation in SEVIS. 
See ``supporting documentation,'' above. No other EAD will be issued.
 
Can a student who has been granted TPS, and has allowed his or her F-1 
status to lapse, apply for reinstatement to F-1 student status?
 
    Yes. Current regulations permit a student who falls out of student 
status to apply for reinstatement. See 8 CFR 214.2(f)(16). For example, 
this provision would apply to a student who worked on a TPS-related EAD 
or dropped his or her course load before publication of this notice, 
and therefore fell out of student status. The student must satisfy the 
criteria set forth in the student status reinstatement regulations.
 
How long will this notice remain in effect?
 
    This notice grants temporary relief until July 22, 2011 to a 
specific group of F-1 students whose country of citizenship is Haiti. 
During this period, DHS will continue to monitor the situation in 
Haiti. Should the special provisions authorized by this notice need to 
be modified or extended, DHS will announce such changes in the Federal 
Register.
 
Paperwork Reduction Act
 
    An F-1 student seeking off-campus employment authorization due to 
severe economic hardship must demonstrate to the DSO at the school 
where he or she is enrolled that this employment is necessary to avoid 
severe economic hardship. If the DSO agrees that the student should 
receive such employment authorization, he or she must recommend 
application approval to USCIS by entering information in the remarks 
field of the student's SEVIS record. The authority to collect this 
information is currently contained in the Student and Exchange Visitor 
and Information System (SEVIS) collection of information currently 
approved by OMB under OMB Control Number 1653-0038.
    This notice also allows F-1 students whose country of citizenship 
is Haiti and who are experiencing severe economic hardship as a direct 
result of the January 12, 2010 earthquake in Haiti, to obtain 
employment authorization, work an increased number of hours while 
school is in session, and reduce their course load, while continuing to 
maintain their F-1 student status.
    To apply for work authorization an F-1 student must complete and 
submit currently approved Form I-765 according to the instructions on 
the form. The authority to collect the information contained on the 
current Form I-765, has previously been approved by the Office of 
Management and Budget under the Paperwork Reduction Act (PRA) (OMB 
Control No. 1615-0040). Although there will be a slight increase in the 
number of Form I-765 filings because of this notice, the number of 
filings currently contained in the OMB annual inventory for Form I-765 
is sufficient to cover the additional filings. Accordingly, there is no 
further action required under the PRA.
 
Janet Napolitano,
Secretary.
[FR Doc. 2010-22929 Filed 9-14-10; 8:45 am]
BILLING CODE 9111-28-P
 


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