Employment Authorization for F-1 Nonimmigrant Students Experiencing Severe Economic Hardship as a Direct Result of Emergent Circumstances in Hong Kong

AGENCY:

U.S. Immigration and Customs Enforcement (ICE), DHS.

ACTION:

Notice.

SUMMARY:

This notice announces that the Secretary of Homeland Security (Secretary) is suspending certain regulatory requirements for F-1 nonimmigrant students who are Hong Kong residents (regardless of country of birth) and who are experiencing severe economic hardship as a direct result of the emergent circumstances in Hong Kong. The Secretary is taking action to provide relief to Hong Kong residents 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 on November 26, 2021 through February 5, 2023.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

What action is the Department of Homeland Security (DHS) taking under this notice?

The Secretary is exercising 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 who, on the date of publication of this notice, are Hong Kong residents, regardless of country of birth, are present in the United States in lawful F-1 nonimmigrant student status and are experiencing severe economic hardship as a direct result of the emergent circumstances in Hong Kong. Effective with this publication, suspension of the employment limitations is available through February 5, 2023, for those who are in lawful F-1 nonimmigrant status. DHS will deem an F-1 nonimmigrant student granted employment authorization through the 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 Hong Kong residents, regardless of country of birth;

(2) Were lawfully present in the United States in an F-1 nonimmigrant status on the date of publication of this notice, 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 maintaining F-1 nonimmigrant status; and

(5) Are experiencing severe economic hardship as a direct result of the emergent circumstances in Hong Kong.

This notice applies to F-1 nonimmigrant students in an approved private school in kindergarten through grade 12, public school in grades 9 through 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?

On August 5, 2021, President Biden issued a memorandum to the Secretary of State and the Secretary of DHS to defer for 18 months the removal of certain Hong Kong residents present in the United States. There are compelling foreign policy reasons to grant Deferred Enforced Departure (DED), including the defense of democracy and the promotion of human rights in Hong Kong. Now, DHS is taking action so eligible F-1 nonimmigrant students who are Hong Kong residents, regardless of country of birth, 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.

As of April 20, 2021, 5,067 F-1 nonimmigrants students who are Hong Kong residents were physically present in the United States and enrolled in SEVP-certified academic institutions. Many of these students are impacted by the emergent circumstances in Hong Kong because their primary means of financial support comes from Hong Kong. Without employment authorization, these students may lack the means to meet basic living expenses. Therefore, in support of affected F-1 nonimmigrant students who may be unable to return to Hong Kong for the foreseeable future, the Secretary is exempting them from the normal student employment requirements so that they may support themselves as they continue their program of study in the United States.

What is the minimum course load requirement to maintain valid F-1 nonimmigrant status under 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). Nothing in this notice affects the applicability of other minimum course load requirements set by the academic institution.

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 in grades kindergarten through grade 12 or public school in grades 9 through 12 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). Nothing in this notice affects the applicability of federal and state labor laws limiting the employment of minors.

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. An F-1 nonimmigrant student who is a Hong Kong resident, regardless of country of birth, who already has on-campus or off-campus employment authorization and is otherwise eligible may benefit under this notice, which suspends certain regulatory requirements relating to the minimum course load requirement under 8 CFR 214.2(f)(6)(i)(A) and (B) and certain employment eligibility requirements under 8 CFR 214.2(f)(9). 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, the F-1 nonimmigrant student must request that the designated school official (DSO) enter the following statement in the remarks field of the student's Student and Exchange Visitor Information System (SEVIS) record, which the student's Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status, will reflect:

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 date comes first].

Must the F-1 nonimmigrant student apply for reinstatement after expiration of this special employment authorization if the student reduces their “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 student's 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 they are otherwise maintaining F-1 nonimmigrant 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 the effective date of this notice in the Federal Register ?

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

(1) Are Hong Kong residents, regardless of country of birth;

(2) Were lawfully present in the United States in F-1 nonimmigrant status on the date of publication of this notice, 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 of F-1 nonimmigrant students;

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

(5) Are experiencing severe economic hardship as a direct result of the emergent circumstances in Hong Kong.

An F-1 nonimmigrant student who does not meet all these requirements is ineligible for the suspension of the applicability of the standard regulatory requirements (even if experiencing severe economic hardship as a direct result of the emergent circumstances in Hong Kong).

Does this notice apply to a continuing F-1 nonimmigrant student who departs the United States after the effective date 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 an F-1 nonimmigrant student, but only if the DSO has properly notated the student's 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 in order to continue their 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 F-1 nonimmigrant students enrolled in private kindergarten through grade 12, or public school grades 9 through 12. Such 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 enrolled in an elementary school, middle school, or high school may 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 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 nonimmigrant student's on-campus employment to 20 hours per week while school is in session. An eligible F-1 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 be reflected 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 this 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 the DSO that the employment is necessary to avoid severe economic hardship directly resulting from the emergent circumstances in Hong Kong. An F-1 nonimmigrant student authorized by the student's DSO to engage in on-campus employment by means of this notice does not need to file any applications with USCIS. The standard rules permitting 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 their F-1 nonimmigrant 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 their 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 status for one full academic year in order 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 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 the student's 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 for reduced course load is solely for DHS purposes of determining valid F-1 nonimmigrant status. Nothing in this notice mandates that school officials allow an F-1 nonimmigrant student to take a reduced course load if such 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 severe economic hardship directly resulting from the emergent circumstances in Hong Kong. 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, Application for Employment Authorization. See www.uscis.gov/feewaiver. The submission must include an explanation about 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 emergent circumstances in Hong Kong.

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 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 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 a F-1 nonimmigrant student be approved for Special Student Relief, the DSO certifies that:

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

(b) The F-1 nonimmigrant student is a Hong Kong resident, regardless of country of birth, and is experiencing severe economic hardship as a direct result of the emergent circumstances in Hong Kong, 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 the student is 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 emergent circumstances in Hong Kong.

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, Form I-912, 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, USCIS will send the student a Form I-766 EAD as evidence of employment authorization. The EAD will contain an expiration date that does not exceed the end of the granted temporary relief.

Deferred Enforced Departure Considerations

Can an F-1 nonimmigrant student apply for a DED-related EAD and for benefits under this notice at the same time?

Yes. An F-1 nonimmigrant student who has not yet applied for relief that reduces the student's course load per term and permits an increased number of work hours per week, such as Special Student Relief, under this notice may want to obtain a DED-based EAD by filing Form I-765, Application for Employment Authorization, and pay the associated fee (or request a fee waiver). Although not required to do so, if an F-1 nonimmigrant student wants to obtain a new EAD that is valid through February 5, 2023, based on DED, the student must file Form I-765 and pay the Form I-765 fee (or request a fee waiver). After receiving the DED-related EAD, an F-1 nonimmigrant student may request that the DSO make the required entry in SEVIS, issue an updated Form I-20, as described in this notice, and notate that the F-1 nonimmigrant student has been authorized to carry a reduced course load and is working pursuant to a DED-related EAD. So long as the F-1 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 remains covered under DED, then the student maintains F-1 nonimmigrant status and DED concurrently.

When a student applies simultaneously for a DED-related EAD 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 F-1 nonimmigrant student is granted employment authorization under this notice. DED-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 hours of instruction per academic term if the student is at the undergraduate level, or 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)(5)(v), 214.2(f)(6), 214.2(f)(9)(i) and (ii).

How does an F-1 student who has received a DED-related EAD then apply for authorization to take a reduced course load under this notice?

There is no further application process with USCIS if a student has been approved for a DED-related EAD. However, the F-1 nonimmigrant student must demonstrate and provide documentation to the DSO of severe economic hardship as a direct result of the emergent circumstances in Hong Kong. The DSO will then verify and update the student's SEVIS record to enable the F-1 nonimmigrant student with DED to reduce their 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 a DED-related EAD apply for reinstatement to F-1 nonimmigrant student status after the noncitizen's F-1 nonimmigrant student status has lapsed?

Yes. Current regulations permit certain noncitizens 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 a noncitizen who worked on a DED-related EAD or dropped their course load before publication of this notice, and therefore fell out of F-1 nonimmigrant status. The noncitizen must satisfy the criteria set forth in the F-1 nonimmigrant student status reinstatement regulations. See 8 CFR 214.2(f)(16)

How long will this notice remain in effect?

This notice grants temporary relief until February 5, 2023 to eligible F-1 nonimmigrant students. DHS will continue to monitor the situation in Hong Kong. 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 resulting from the emergent circumstances in Hong Kong 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.