Green Cards US Immigration Policy Visas - H-1b, L-1, E, O, TN

Changes to STEM OPT

It has been long rumored that the current Administration would try and eliminate the STEM OPT program. It appears that they have now struck a major blow to its use by staffing and consulting companies. They did not issue a new policy memorandum nor did they publish a proposed change to the existing regulation but, they have changed the content on the USCIS web-site. A review of these changes makes it very clear that there is a prohibition on the placement of any OPT STEM worker at a 3rd party site. The new description specifically refers to the concept of a “training experience” and states:
” Such entities [staffing companies] may not, however, assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client. As noted above, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student.”

Given that this was announced via the USCIS web-site and did not go through any formal rulemaking means that it is very likely ultra vires and a prohibited interpretation but, unless an employer or other entity files a Federal lawsuit against the USCIS, individual examiners adjudicating I-765 applications based upon an I-983 with a staffing company as an employer are likely to follow this guidance. Further, it is expected that schools would not approve an I-983 with a staffing company as an employer.

For individuals with an already approved EAD card working for a staffing company, we do not believe this change impacts you.

It is most interesting that the web-page in question claims it was last updated in Jan of 2018 however, that is clearly not accurate. Whether the date was left in place in error or whether it was designed to appear as if there has been no change is unknown. Kudos to the Murthy firm for noting the web-page change and alerting the business immigration community.

We will provide updates as more information is provided.

Update as of 4-23-2018 Unofficial information from USCIS is that there is nothing new and that the web-site was updated in Jan 2018 and that guidance has been in effect since then. In speaking to a few FSA’s at universities, no new directive has been provided to them. The annual NAFSA meeting is in early May and this issue is expected to be a topic of discussion.

Government Agency Actions - USCIS, ICE, etc.

Final Rule Increasing OPT For STEM Students Released

The final rule was release today, March 9, 2016, this document is unpublished on the Federal Register, but on 03/11/2016 it is scheduled to be published and available. Until then, you can see the pre-publication PDF version here: Final OPT STEM rule. The rule will go into effect in May. The highlight of the new rule will be that certain foreign students in F-1 status with degrees in science, technology engineering or math (STEM) will be able to extend their initial 12-month OPT period by an extra 24 months, for a total of 36 months.

DHS has stated that 17-month STEM OPT work permit issued before May 10 will remain valid until it expires, but that beginning on May 10, certain students will have a chance to apply for an additional seven months of OPT.

Government Agency Actions - USCIS, ICE, etc.

Update on STEM OPT Extension Lawsuit

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.

Government Agency Actions - USCIS, ICE, etc.

STEM OPT Rule Update

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.”

Government Agency Actions - USCIS, ICE, etc. Visas - H-1b, L-1, E, O, TN

Proposed STEM OPT Rule Summarized

On October 19, 2015, the Department of Homeland Security published a proposed regulation that is a direct response to a federal judge’s order striking down the existing STEM OPT program because of a lack of compliance with the Administrative Procedures Act. The proposed rule would make several changes to the F-1 STEM OPT program and includes formal rulemaking for the so-called “cap-gap” rule. Public comments to the proposed rule are due by Nov 18, 2015. Below is a listing of what we consider to be the highlights of the proposed rule.

1. The STEM OPT program would be extended to 24 months. Individuals who received a degree in certain science, technology, engineering and math fields could receive an additional 24 months of optional practical training beyond the 12 months provided to most F-1 graduates.
2. Employers must participate in E-Verify in order to hire STEM OPT graduates.
3. Employers must create a formal mentoring and training plans for STEM OPT employees.
4. Employers must also have a process in place for evaluating the STEM OPT employee.
5. Employers must demonstrate that US workers are being protected by demonstrating that the employer has the resources to provide mentoring and training and the employer will not lay off US workers as a result of hiring a STEM OPT worker.
6. Employers will be subject to site visits by the DHS to insure compliance with the mentoring and training program rules.
7. The proposed rule defines which STEM categories qualify based on the Department of Education’s CIP taxonomy and includes groups containing mathematics, natural sciences, engineering/engineering technologies and computer/information systems. Health and social sciences are not included. The DHS will publish a list of accepted STEM fields in the Federal Register.

Green Cards

District Court Determines that Technology Union has Standing to Sue

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.

US Immigration Policy

Senator Grassley Points to Flaws in the OPT STEM Program and Demands an Investigation !

As reported in this blog previously, President Obama’s administration recently expanded the number of STEM programs that make OPT available for 29 months.  This expansion bypassed Congress and was issued without notice and comment or any other rulemaking procedure. Senator Grassley has called for an investigation into the STEM OPT program.  He claims that the expanded program hurts US grads and undermines US security. Although his challenge based upon US security concerns is nothing more than fanning the flames of extremists, clearly a core constituency of the Sentor’s, his claim that the expanded program fails to provide protection of US workers has merit and needs careful consideration.  If in fact, rulemaking procedures had been follwed, as dictated by the APA, this expansion could’ve been carefully considered by all stakeholders.  It has become  a consistent practice of this administration to issue new “rules” eg. the 2010 Neufeld memo changing the definition of an employer/employee in the H-1b context and the more subtle yet no less impactful change of the definition of specialized knowledge in the L-1b context.  What is ironic is that Senator Grassley engineered the new rules in the H-1b and L-1b context and yet has the audacity to now complain about the failure to follow proper protocol. It appears that the proper protocol only needs to be followed when he disagrees with the rule being issued.   Frankly, I think all of he new rules discussed above would be better rules if the proper procedures had been follwed. I may not like the ultimate result any better but, there is something to be said for careful consideration instead of dictatorial edict whether that dictator is a Senator or an Executive Administration official.