The USCIS posted a reminder to F-1 students working on OPT and OPT STEM about monitoring the duration of all periods of unemployment as exceeding the cumulative allowance can leave a student without legal status and impact future change of status filings. One of the most common RFE’s issued in H-1b cap cases is demanding proof of status of students who have engaged in any type of employment whether OPT, STEM OPT, or CPT. The USCIS has created a helpful counter to assist. During this time of COVID as instances of temporary unemployment have become more common, this is a timely reminder.
DHS has release its Agency Rule List for Spring 2018. In this release the current administration outlined their rule change wish list, which includes:
1. Scrapping the H1b lottery. Possibly requiring preregistration for H1b’s.
2. Revisions to H1b definitions for specialty occupation. We’ve already seen some Officers use narrower interpretations than what we believe the regs plainly state.
3. Ending the H4 EAD program.
4. OPT reform. We have already seen some of this through the USCIS website update restricting 3rd party placements.
5. B visa reform. We anticipate that they are seeking to narrow the allowable business activities on B1 visas.
6. New Fee schedule. Because USCIS Officers are having to work overtime to generate all these RFE’s for you! [satire]
These are changes that will not take effect immediately and must go through the regulatory rule change process. HLG will be monitoring these potential changes and will update our clients when/if they affect your business.
The Washington Alliance of Technology Workers (WashTech) continues its lawsuit in an attempt to end STEM OPT. On Feb. 4 WashTech sought review of the Aug. 12 order from U.S. District Judge Ellen Segal Huvelle, which vacated the 2008 rule extending the OPT period for foreign students with science- and math-related (STEM) degrees by 17 months, but allowed the U.S. Department of Homeland Security to reissue the regulation through the notice and comment process.
DHS last month said the district court shouldn’t have even reached the merits of the dispute, contending that WashTech doesn’t have legal standing because it hasn’t shown its members were harmed by the rule. WashTech counters that its standing is based on a group of American computer professionals are challenging regulations designed to create a “significant expansion” of foreign workers in their field of employment.
In its current appeal, Judge Huvelle found the group didn’t have standing to challenge that aspect of the program, as its members hadn’t alleged injuries earlier than 2008. She also found the claims were barred by the statute of limitations. WashTech “has not identified a single member demonstrating ongoing or imminent competitive injury caused by the existence of the pre-or-post 2008 version of the OPT rule,” it wrote. “The absence of such evidence means no Washtech member is ‘a direct and current competitor whose bottom line may be adversely affected by the challenged government action.’”
WashTech is grasping at straws as its one argument of merit, that the original 2008 rule was procedurally deficient, will be overcome once the new proposed STEM rule completes its notice and comment period. The new rule is expected to be published in the federal register on or before May 10, 2016.
The U.S. Department of Homeland Security will have 90 additional days to revise the F-1 STEM OPT rule. The original rule, allowing for 17 months of additional OPT time if the student was in a STEM field, was order to be vacated as of February 12, 2016. U.S. District Judge Ellen Segal Huvelle granted DHS’s request to extend the expiration date terminating the original rule so that the agency can avoid a regulation gap. USCIS now has until May 10, 2016 to revise and publish the new STEM OPT rule.
USCIS requested this extension citing the need for more time to review the more than 50,500 comments it received on its replacement rule and argued that allowing the old optional practical training regulation to expire next month would hurt tens of thousands of students relying upon it. The comment period ended November 18, 2015. Judge Huvelle agreed, starting that the significance of the undue hardship to STEM OPT participants and employers that warranted the stay in the first place “cannot be understated.”
In response to a federal judge that struck down the existing STEM 17 month OPT extension policy as a violation of the APA, the DHS has released an unpublished version of the proposed rule to essentially reinstate the policy. We expect the proposed rule will be officially published on Monday October 19th and we will be posting a summary next week. We will also be submitting comments to the DHS within the 30 day comment period.
The U.S. District Court for the District of Columbia recently determined that a union that represents technology workers has standing to sue the U.S. Department of Homeland Security on the basis that these workers were harmed by the U.S. Optional Practical Training (“OPT”) STEM extension program. In Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, the court considered whether a collective-bargaining organization that represents science, technology, engineering, and mathematics workers had standing to sue the U.S. government on the basis that the OPT program and OPT STEM extension program had injured the U.S. workers represented by this union. The plaintiff argued that these programs had increased competition for STEM jobs, which harmed its union members. Specifically, three union members were unable to obtain employment with JP Morgan Chase, Ernst &Young, IBM, and Hewlett Packard between 2010 and 2011. During this same time period, these organizations employed OPT STEM employees. The District Court stated that to establish standing, the plaintiff must show that: “(1) it has suffered an injury-in-fact, (2) the injury is fairly traceable to the defendant’s challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.” Since there was no allegation in the complaint that the union’s workers applied for roles that were filled by OPT workers, the first three complaints were dismissed. In reviewing the remaining complaints, the court did find that the three workers “are specialized in computer technology, and they have sought out a wide variety of STEM positions with numerous employers, but have failed to obtain these positions following the promulgation of the OPT STEM extension in 2008.” Since the court found that these workers were “in direct and current competition with OPT students on a STEM extension,” the court found that the plaintiff had standing to sue on the remaining claims. While the STEM program is applauded for providing work authorization to individuals who have needed science, technology, engineering, and mathematics training in the U.S., this case shows that some unions believe that U.S. workers are being harmed.
Recently, the DHS updated and expanded the STEM list . Inclusion on the STEM list allows a 17 month extension of one’s OPT if you are employed by an eVerify employer.
As part of President Obama’s public claims to foster legal immigration and encourage entrepreneurship, the DHS announced several planned reforms to achieve these goals without the need for legislative action. We applaud the goals of the administration and these planned reforms and just hope that the culture of no which so permeates the agency at the service center levels are not able to quickly thwart the Preseident’s plans in much the same way that Senator Grassley and his cohorts in Congress would most assuredly stop these reform measures if Congressional action were required.
With the H-1b cap season in full swing, the USCIS has issued a new set of FAQ on the subject of “cap-gap”. A “cap-gap” occurs when a foreign student’s EAD card, issued pursuant to the OPT rules, expires prior to October 1, 2011. The USCIS has adopted rules that provides for an automatic extension that allows students to continue to be employed under the OPT provisions as long as their sponsoring employer has timely filed an H-1b cap subject petition that is properly receipted. An employer should be careful that the employee’s I-9 form is properly completed in this situation. We applaud the USCIS for its “cap-gap” policy.