Employment Authorization for Burmese F-1 Nonimmigrant Students Experiencing Severe Economic Hardship as a Direct Result of the Current Crisis in Burma (Myanmar)

AGENCY:

U.S. Immigration and Customs Enforcement (ICE); Department of Homeland Security (DHS).

SUMMARY:

This notice announces that the Secretary of Homeland Security (Secretary) has suspended certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Burma (regardless of country of birth) and who are experiencing severe economic hardship as a direct result of the current crisis in Burma. The Secretary is taking action to provide relief to Burmese citizens who are lawful F-1 nonimmigrant students so the students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 nonimmigrant student status. DHS will deem an F-1 nonimmigrant student who receives employment authorization by means of this notice to be engaged in a “full course of study” for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in this notice.

DATES:

This F-1 Notice is effective May 25, 2021 and will remain in effect until November 25, 2022.

FOR FURTHER INFORMATION CONTACT:

Sharon Snyder, Unit Chief, Policy and Response Unit, Student and Exchange Visitor Program; U.S. Immigration and Customs Enforcement, 500 12th Street SW, Stop 5600, Washington, DC 20536-5600; email: sevp@ice.dhs.gov, telephone: (703) 603-3400. This is not a toll-free number. Program information is available at http://www.ice.gov/sevis/.

SUPPLEMENTARY INFORMATION:

What action is DHS taking under this notice?

The Secretary is exercising the authority under 8 CFR 214.2(f)(9) to temporarily suspend the applicability of certain requirements governing on-campus and off-campus employment for F-1 nonimmigrant students whose country of citizenship is Burma (regardless of country of birth), who are present in the United States in lawful F-1 nonimmigrant student status as of May 25, 2021, and who are experiencing severe economic hardship as a direct result of the current crisis in Burma. Effective with this publication, suspension of the employment limitations is available through November 25, 2022, for those who are in lawful F-1 nonimmigrant status as of May 25, 2021. DHS will deem an F-1 nonimmigrant student granted employment authorization by means of this notice to be engaged in a “full course of study,” for the duration of the employment authorization, if the student satisfies the minimum course load set forth 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 nonimmigrant students who meet all of the following conditions:

(1) Are citizens of Burma, regardless of country of birth;

(2) Were lawfully present in the United States in F-1 nonimmigrant status on May 25, 2021, under section 101(a)(15)(F)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(15)(F)(i);

(3) Are enrolled in an academic institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment of F-1 nonimmigrant students;

(4) Are currently maintaining F-1 nonimmigrant status; and

(5) Are experiencing severe economic hardship as a direct result of the current crisis in Burma.

This notice applies to F-1 nonimmigrant students engaged in private school (kindergarten through grade 12), public school (grades 9-12), and undergraduate and graduate education. An F-1 nonimmigrant student covered by this notice who transfers to another SEVP-certified academic institution remains eligible for the relief provided by means of this notice.

Why is DHS taking this action?

As a result of the current crisis in Burma, the Secretary designated Burma for Temporary Protected Status (TPS) for 18 months, effective May 25, 2021 through November 25, 2022, based on extraordinary and temporary conditions in Burma caused by a February 2021 military coup, which has led to continuing violence, arbitrary detentions, use of lethal violence against peaceful protesters, and the worsening of humanitarian conditions. DHS now is taking action to provide relief to eligible Burmese F-1 nonimmigrant students who are experiencing severe economic hardship as a direct result of the current crisis in Burma. These nonimmigrant students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 nonimmigrant student status.

DHS has reviewed conditions in Burma and determined that making employment authorization available for eligible nonimmigrant students is warranted due to conditions in Burma. On February 1, 2021, the Burmese military perpetrated a coup, deposing the democratically elected government. The military is responding to the Burmese people's peaceful rejection of the coup with brutal repression and violence, resulting in large-scale human rights abuses, including arbitrary detentions and deadly force against unarmed individuals. The coup has triggered a humanitarian crisis, including the disruption of communications and limited access to medical care. The impacts include, among other things, the closure of banks and interruptions of payments and cash withdrawal systems, as well as a reported increase in prices of basic commodities, including food, construction materials and fuel in some areas. Among those in need of humanitarian assistance are over 330,000 people in Burma who remain internally displaced.

As of March 11, 2021, approximately 1,634 Burmese F-1 nonimmigrant students were physically present in the United States and enrolled in SEVP-certified academic institutions. Given the extent of the current crisis in Burma, affected nonimmigrant students whose primary means of financial support comes from Burma may need to be exempt from the normal student employment requirements to continue studying in the United States. The current crisis has created financial barriers for nonimmigrant students which could interfere with their ability to financially support themselves and to return to Burma for the foreseeable future. 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 F-1 nonimmigrant students who receive on-campus or off-campus employment authorization under this notice must remain registered for a minimum of six semester or quarter hours of instruction per academic term. A graduate-level F-1 nonimmigrant student who receives on-campus or off-campus employment authorization under this notice must remain registered for a minimum of three semester or quarter hours of instruction per academic term. See 8 CFR 214.2(f)(5)(v).

In addition, an F-1 nonimmigrant student (either undergraduate or 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 course of study is in a language study program. See 8 CFR 214.2(f)(6)(i)(G). An F-1 nonimmigrant student attending an approved private school (kindergarten through grade 12) or public school (grades 9-12) must maintain “class attendance for no 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 an eligible F-1 nonimmigrant student who already has on-campus or off-campus employment authorization benefit from the suspension of regulatory requirements under this notice?

Yes. A Burmese F-1 nonimmigrant student who already has on-campus or off-campus employment authorization and is otherwise eligible may benefit under this notice, which suspends 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 an eligible F-1 nonimmigrant student may benefit without having to apply for a new Form I-766, Employment Authorization Document (EAD). To benefit from this notice, F-1 nonimmigrant students must request that their designated school official (DSO) enter the following statement in the remarks field of that student's Student and Exchange Visitor Information System (SEVIS) record so the students' Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status reflects:

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 the notice or the beginning date of the student's employment, whichever date is later] until [DSO must insert either the student's program end date, the current EAD expiration date (if the student is currently authorized for off-campus employment), or the end date of this notice, whichever comes first].

Must the F-1 nonimmigrant student apply for reinstatement after expiration of this special employment authorization if the student reduces the “full course of study”?

No. DHS will deem an F-1 nonimmigrant student who receives and comports with the employment authorization permitted under this notice to be engaged in a “full course of study” for the duration of the employment authorization, provided that a qualifying undergraduate level F-1 nonimmigrant student remains registered for a minimum of six semester or quarter hours of instruction per academic term and a qualifying graduate level F-1 nonimmigrant student remains registered for a minimum of three semester or quarter hours of instruction per academic term. See 8 CFR 214.2(f)(5)(v) and (f)(6)(i)(F). DHS will not require such students to apply for reinstatement under 8 CFR 214.2(f)(16) if otherwise maintaining F-1 nonimmigrant student status.

Will an F-2 dependent (spouse or minor child) of an F-1 nonimmigrant student covered by this notice be eligible to apply for employment authorization?

No. An F-2 spouse or minor child of an F-1 nonimmigrant student is not authorized to work in the United States and, therefore, may not accept employment under the F-2 nonimmigrant status. See 8 CFR 214.2(f)(15)(i).

Will the suspension of the applicability of the standard student employment requirements apply to an individual who receives an initial F-1 visa and makes an initial entry in the United States after publication of this notice in the Federal Register?

No. The suspension of the applicability of the standard regulatory requirements only applies to those F-1 nonimmigrant students who meet the following conditions:

(1) Are citizens of Burma, regardless of country of birth;

(2) Were lawfully present in the United States in F-1 nonimmigrant status on May 25, 2021, under section 101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i);

(3) Are enrolled in an academic institution that is SEVP-certified for enrollment for F-1 nonimmigrant students;

(4) Are currently maintaining F-1 nonimmigrant status; and

(5) Are experiencing severe economic hardship as a direct result of the current crisis in Burma.

An F-1 nonimmigrant student who does not meet all of these requirements is ineligible for the suspension of the applicability of the standard regulatory requirements under this notice (even if experiencing severe economic hardship as a direct result of the current crisis in Burma).

Does this notice apply to a continuing F-1 nonimmigrant student who departs the United States after publication of this notice in the Federal Register and who needs to obtain a new F-1 visa before returning to the United States to continue an educational program?

Yes. This notice applies to such a nonimmigrant student, but only if the DSO has properly notated the SEVIS record, which will then appear on the student's Form I-20. The normal rules for visa issuance remain applicable to a nonimmigrant who needs to apply for a new F-1 visa to continue an educational program in the United States.

Does this notice apply to elementary school, middle school, and high school students in F-1 status?

Yes. However, this notice does not by itself reduce the required course load for private school (kindergarten through grade 12) or public school (grades 9-12) F-1 nonimmigrant students. Such Burmese students must maintain the minimum number of hours of class attendance per week prescribed by the academic institution for normal progress toward graduation. See 8 CFR 214.2(f)(6)(i)(E). The suspension of certain regulatory requirements related to employment through this notice is applicable to all eligible F-1 nonimmigrant students regardless of educational level. Eligible F-1 nonimmigrant students covered by this notice who are 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. Nothing in this notice affects the applicability of federal and state labor laws limiting the employment of minors.

On-Campus Employment Authorization

Will an F-1 nonimmigrant student who receives on-campus employment authorization under this notice be authorized to work more than 20 hours per week while school is in session?

Yes. For an F-1 nonimmigrant student covered by this notice, the Secretary is suspending the applicability of the requirement in 8 CFR 214.2(f)(9)(i) that limits an F-1 nonimmigrant student's on-campus employment to 20 hours per week while school is in session. An eligible nonimmigrant student has authorization to work more than 20 hours per week while school is in session, if the DSO has entered the following statement in the remarks field of the SEVIS student record, which will appear on the student's Form I-20:

Approved for more than 20 hours per week of on-campus employment and reduced course load, under the Special Student Relief authorization from [DSO must insert the beginning date of the notice or the beginning date of the student's employment, whichever date is later] until [DSO must insert the student's program end date or the end date of this notice, whichever date comes first].

To obtain on-campus employment authorization, the F-1 nonimmigrant student must demonstrate to their DSO that the employment is necessary to avoid severe economic hardship directly resulting from the current crisis in Burma. A nonimmigrant student authorized by their DSO to engage in on-campus employment by means of this notice does not need to file with the U.S. Citizenship and Immigration Services (USCIS). The standard rules that permit full-time employment on-campus when school is not in session or during school vacations apply. See 8 CFR 214.2(f)(9)(i).

Will an F-1 nonimmigrant student who receives on-campus employment authorization under this notice have authorization to reduce the normal course load and still maintain the student's F-1 nonimmigrant student status?

Yes. DHS will deem an F-1 nonimmigrant student who receives on-campus employment authorization under this notice to be engaged in a “full course of study” for the purpose of maintaining F-1 nonimmigrant student status for the duration of the on-campus employment, if the student satisfies the minimum course load requirement described in this notice. See 8 CFR 214.2(f)(6)(i)(F). However, the authorization to reduce the normal course load is solely for DHS purposes of determining valid F-1 nonimmigrant student status. Nothing in this notice mandates that school officials allow an F-1 nonimmigrant student to take a reduced course load if the reduction would not meet the school's minimum course load requirement for continued enrollment.

Off-Campus Employment Authorization

What regulatory requirements does this notice temporarily suspend relating to off-campus employment?

For an F-1 nonimmigrant student 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 nonimmigrant student status for one full academic year to be eligible for off-campus employment;

(b) The requirement that an F-1 nonimmigrant student must demonstrate that acceptance of employment will not interfere with the student's carrying a full course of study;

(c) The requirement that limits an F-1 nonimmigrant student's employment authorization to no more than 20 hours per week of off-campus employment while school is in session; and

(d) The requirement that the student demonstrate that the employment under 8 CFR 214.2(f)(9)(i) is unavailable or otherwise insufficient to meet the needs that have arisen as a result of the unforeseen circumstances.

Will an F-1 nonimmigrant student who receives off-campus employment authorization under this notice have authorization to reduce the normal course load and still maintain F-1 nonimmigrant status?

Yes. DHS will deem an F-1 nonimmigrant student who receives off-campus employment authorization by means of this notice to be engaged in a “full course of study” for the purpose of maintaining F-1 nonimmigrant student status for the duration of employment authorization if the student satisfies the minimum course load requirement described in this notice. See 8 CFR 214.2(f)(6)(i)(F). However, the authorization to reduce the normal course load is solely for DHS purposes of determining valid F-1 nonimmigrant student status. Nothing in this notice mandates that school officials allow an F-1 nonimmigrant student to take a reduced course load if such a reduced course load would not meet the school's minimum course load requirement.

How may an eligible F-1 nonimmigrant student obtain employment authorization for off-campus employment with a reduced course load under this notice?

An F-1 nonimmigrant student must file a Form I-765, Application for Employment Authorization, with USCIS to apply for off-campus employment authorization based on the severe economic hardship directly resulting from the current crisis in Burma. Filing instructions are located at http://www.uscis.gov/i-765.

Fee considerations. Submission of a Form I-765 currently requires payment of a $410 fee. An applicant who is unable to pay the fee may submit a completed Form I-912, Request for Fee Waiver, along with the Form I-765. See www.uscis.gov/feewaiver. The submission must include an explanation of why USCIS should grant the fee waiver and the reason(s) for the inability to pay, and any evidence to support the reason(s). See 8 CFR 103.7(c).

Supporting documentation. An F-1 nonimmigrant student seeking off-campus employment authorization due to severe economic hardship must demonstrate the following to the DSO:

(1) This employment is necessary to avoid severe economic hardship; and

(2) The hardship is a direct result of the current crisis in Burma.

If the DSO agrees that the F-1 nonimmigrant student should receive such employment authorization, the DSO 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 that 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 students' program end date or the end date of this notice, whichever date comes first].

The F-1 nonimmigrant student must then file the properly endorsed Form I-20 and Form I-765 according to the instructions for the Form I-765. The F-1 nonimmigrant student may begin working off campus only upon receipt of the EAD from USCIS.

DSO recommendation. In making a recommendation that an F-1 nonimmigrant student be approved for Special Student Relief, the DSO certifies the following:

(a) The F-1 nonimmigrant student is in good academic standing and carrying a “full course of study” at the time of the request for employment authorization;

(b) The F-1 nonimmigrant student is a citizen of Burma (regardless of country of birth) and is experiencing severe economic hardship as a direct result of the current crisis in Burma, as documented on the Form I-20;

(c) The F-1 nonimmigrant student has confirmed that the student will comply with the reduced course load requirements of 8 CFR 214.2(f)(5)(v) and register for the duration of the authorized employment for a minimum of six semester or quarter hours of instruction per academic term if at the undergraduate level or for a minimum of three semester or quarter hours of instruction per academic term if at the graduate level; and

(d) The off-campus employment is necessary to alleviate severe economic hardship to the individual as a direct result of the current crisis in Burma.

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 F-1 nonimmigrant student should do both of the following:

(a) Ensure that the application package includes all of the following documents:

(1) A completed Form I-765;

(2) The required fee or properly 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 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, a USCIS official will send the student an EAD as evidence of the students' employment authorization. The EAD will contain an expiration date that does not exceed the end of the granted temporary relief.

Temporary Protected Status Considerations

Can an F-1 nonimmigrant student apply for TPS and for benefits under this notice at the same time?

Yes. An F-1 nonimmigrant student who has not yet applied for TPS or other relief that reduce the student's course load per term and permits an increase number of work hours per week, such as Special Student Relief, under this notice has two options.

Under the first option, the nonimmigrant student may file the TPS application according to the instructions in the Federal Register notice designating Burma for TPS. All TPS applicants must file a Form I-821, Application for Temporary Protected Status (or submit a Request for a Fee Waiver (Form I-912)). Although not required to do so, if an F-1 nonimmigrant student wants to obtain a new EAD based on their TPS application that is valid through November 25, 2022, and to be eligible for EAD extensions that may be available to EADs with an A-12 or C-19 category code, they must file Form I-765 and pay the Form I-765 fee (or submit a Request for a Fee Waiver (Form I-912)). After receiving the TPS-related EAD, an F-1 nonimmigrant student may request that the student's DSO make the required entry in SEVIS, issue an updated Form I-20, as described in this notice, and notate that the nonimmigrant student has been authorized to carry a reduced course load and is working pursuant to a TPS-related EAD. So long as the nonimmigrant student maintains the minimum course load described in this notice, does not otherwise violate the student's nonimmigrant status, including as provided under 8 CFR 214.1(g), and maintains the student's TPS, then the student maintains F-1 nonimmigrant status and TPS concurrently.

Under the second option, the nonimmigrant student may apply for an EAD under Special Student Relief by filing the Form I-765 with the location specified in the filing instructions. At the same time, the F-1 nonimmigrant student may file a separate TPS application but must submit the TPS application according to the instructions provided in the Federal Register Notice designating Burma for TPS. Because the F-1 nonimmigrant student already has applied for employment authorization under Special Student Relief, they are not required to submit the Form I-765 as part of the TPS application. However, some nonimmigrant students may wish to obtain a TPS EAD in light of certain extensions that may be available to EADs with an A-12 or C-19 category code. The nonimmigrant student should check the appropriate box when filling out Form I-821 to indicate whether an EAD is being requested. Again, the nonimmigrant will be able to maintain compliance requirements for F-1 nonimmigrant student 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 F-1 nonimmigrant student must maintain normal course load requirements for a “full course of study” unless or until the nonimmigrant student receives employment authorization under this notice. TPS-related employment authorization, by itself, does not authorize a nonimmigrant student to drop below twelve credit hours, or otherwise applicable minimum requirements (e.g., clock hours for language students). Once approved for Special Student Relief employment authorization, the F-1 nonimmigrant student may drop below twelve credit hours, or otherwise applicable minimum requirements (with a minimum of six semester or quarter credit hours of instruction per academic term if at the undergraduate level, or a minimum of three semester or quarter credit hours of instruction per academic term if at the graduate level). See 8 CFR 214.2(f)(5)(v), 214.2(f)(6), 214.2(f)(9)(i) and (ii).

How does a student who has received a TPS-related employment authorization document then apply for authorization to take a reduced course load under this notice?

There is no further application process if a student has been approved for a TPS-related EAD. The F-1 nonimmigrant student must demonstrate and provide documentation to the DSO of the direct economic hardship resulting from the current crisis in Burma. The DSO will then verify and update the student's record in SEVIS to enable the F-1 nonimmigrant student with TPS to reduce the course load without any further action or application. No other EAD needs to be issued for the F-1 nonimmigrant student to have employment authorization.

Can a noncitizen who has been granted TPS apply for reinstatement of F-1 nonimmigrant student status after the noncitizen's F-1 nonimmigrant student status has lapsed?

Yes. Current regulations permit certain students who fall out of F-1 nonimmigrant student status to apply for reinstatement. See 8 CFR 214.2(f)(16). This provision might apply to students who worked on a TPS-related EAD or dropped their course load before publication of this notice, and therefore fell out of student status. These students 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 November 25, 2022, to eligible F-1 nonimmigrant students. DHS will continue to monitor the situation in Burma. Should the special provisions authorized by this notice need modification or extension, DHS will announce such changes in the Federal Register.

Paperwork Reduction Act (PRA)

An F-1 nonimmigrant student seeking off-campus employment authorization due to severe economic hardship must demonstrate to the DSO that this employment is necessary to avoid severe economic hardship. A DSO who agrees that a nonimmigrant student should receive such employment authorization must recommend an application approval to USCIS by entering information in the remarks field of the student's SEVIS record. The authority to collect this information is in the SEVIS collection of information currently approved by the Office of Management and Budget (OMB) under OMB Control Number 1653-0038.

This notice also allows an eligible F-1 nonimmigrant student to request employment authorization, work an increased number of hours while the academic institution is in session, and reduce their course load while continuing to maintain F-1 nonimmigrant student status.

To apply for employment authorization, certain F-1 nonimmigrant students must complete and submit a currently approved Form I-765 according to the instructions on the form. OMB has previously approved the collection of information contained on the current Form I-765, consistent with the 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.