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US court extends deadline for new post-study STEM work rules

Short on time? Here are the highlights:

  • A court challenge is continuing for the Optional Practical Training (OPT) programme in the US
  • The OPT allows students to remain in America for up to a year of work experience after graduation, and, in the case of STEM graduates, for up to 29 months of post-study work
  • In August 2015, the court struck down the rule allowing for an extended period for STEM graduates, throwing the future of the programme in doubt
  • The court originally postponed the implementation of its August 2015 ruling until 10 February 2016 to allow the Department of Homeland Security (DHS) an opportunity to address procedural and policy concerns, and to avoid undue hardship for affected students
  • In January 2016, the court granted a further postponement to 10 May 2016 in order to allow DHS the time to complete its work on the file

International students in the US hoping to gain practical experience in their chosen fields of study are getting an extra and unwanted learning experience about the US legal system and political wrangling over immigration.

As we noted in an earlier report from September 2015, the US Department of Homeland Security (DHS), which oversees US immigration, is embroiled in a court battle that has put some students, their dependents, their school advisers, and employers in a state of limbo until at least 10 May 2016. By that date – an extension of the original 10 February deadline set by the presiding judge – DHS must come up with new rules and processes to govern the Optional Practical Training (OPT) provisions of the student visa regulations (formally, the F-1 visa), or possibly see the programme shut down.

Regardless of the eventual outcome, the issue is of great concern given the increasing importance that prospective students place not only on their academic programmes but also on employment opportunities available to them in their host countries.

Originally set up to allow international students to gain up to one year of US work experience in their chosen field, the OPT programme has been operating for over 70 years without fanfare or complaint. In 2008, the Student and Exchange Visitor Programme (SEVP) – DHS’s administrative unit for overseeing both student (F-1) and scholar (J-1) visa operations – tweaked the regulations, offering among other changes a 17-month extension of the OPT period for graduates in science, technology, engineering, and math (STEM) fields.

The court weighs in

More recently, the programme has been the subject of a legal challenge that led the presiding judge to vacate (strike down) the 2008 extension in August 2015, initially granting a six-month stay (postponement) of that order and now a further three-month postponement to the new deadline of 10 May. Both stays were meant to give DHS time to address procedural issues with its original 2008 policy and to prevent undue hardship for the more than 23,000 students and their employers currently taking advantage of the STEM-OPT extension.

Timelines and explanations of the basic issues abound, with the most recent updates added after the judge’s 23 January decision to allow the further three-month extension. (See information from NAFSA: Association of International Educators for additional background.)

The judge did not strike down the actual provisions of the 2008 rule, but declared that DHS and SEVP had not followed correct procedures requiring a period for public comment on the proposed changes before issuing the final rule. SEVP argued that it had followed a different procedure, allowable under emergency conditions (the emergency being the poor state of the US economy and the need to fill high-tech positions not taken by American workers in 2008) and that this exempted the requirement for a public commentary period.

In the wake of the judge’s finding in August 2015, DHS and SEVP next reworked the 2008 regulations before opening the mandatory one-month public comment period on 19 October 2015. Key revisions from the original 2008 rules included:

  • A further extension of the STEM OPT period from the previous 17 months to a proposed 24 months, as well as an extra 24-month STEM OPT period for students who subsequently earn other STEM-area degrees at higher levels of education and an opportunity for students with prior degrees in STEM fields to retroactively seek the STEM extension;
  • New “Mentoring and Training Plans” required of all employers hiring STEM OPT recipients;
  • Attestations from employers that the STEM OPT recipients are not displacing US citizens with their employment and that the students are receiving equitable wages and work conditions;
  • Clearer definitions of STEM-related fields as well as more specific policy on how DHS would go about altering the list of approved STEM fields in the future;
  • Authorisation for DHS to conduct on-site reviews of employers;
  • Allowing STEM-OPT applicants an increase from 90 to 150 days for unemployment (presumably while job searching).

Conditions continuing from the 2008 interim ruling include heavier requirements for OPT students to report to DHS (through the Designated School Officials, or DSOs, of their institutions) their whereabouts and employers, employers’ mandated use of the electronic “E-verify” programme for ascertaining workers’ legal eligibility, and continuation of “CAP GAP” extensions, a measure designed to give OPT students whose allotted authorised time in the US ends prior to 1 October of any year an extension through that date (this is date each year when companies and international employees can first file requests for H-1 visas).

DHS was overwhelmed with a whopping total of 50,072 comments from the public – 2.5 times more comments than ever before received for any proposed change. Since each submission is required to be read and incorporated into a summation of all comments, DHS found it impossible to complete its task by the original 10 February deadline and thus in January sought and received the judge’s extension to May.

Students – over 50,000 in total according to DHS filings in the case, including those currently in STEM OPT placements and eligible for the extension in addition to those near degree completion and thus eligible for OPT – as well as universities and employers utilising the programme can only wait and hope that the judge will find that DHS has followed proper protocol and issued satisfactory new regulations.

In the meantime, OPT applications are still being accepted and processed, and students currently on OPT continue working with legal employment authorisations. If the judge concurs that DHS has followed protocol and issued reasonable revisions to its regulations, the programme will continue.

What happens next?

That, however, will not likely end the battle. What comes next, according to immigration attorney David Ware of the immigration law firm Ware Immigration, could be even more interesting. Mr Ware anticipates that the proposed regulatory changes may well lead to further litigation. Since the judge had ruled that the 2008 process rather than the policy was at fault, “if the proposed rule had just parroted the old rule, I don’t think there’d be any or much possibility of new litigation,” he says. “But since the new rule expands OPT, I think we could see some new litigation.”

Mr Ware said that many of the comments opposing the new rules were “cut-and-paste comments prompted by postings on anti-immigrant websites. The anti-immigrant folks are really on this.”

“The strategy could simply be to obstruct and to delay, to say ‘hey, we know we’re not going to win, but maybe we could delay this happening for two or three more years.’ That’s my fear, that there might be additional litigation.”

Robin Catmur, Director of Immigration Services at the University of Georgia which has 315 OPT students on its rolls along with 68 currently utilising the extended STEM period, said that, “Overall the programme is positive, but it is going to be more work for everyone.”

Ms Catmur, a former regulatory ombudsman for NAFSA, worries about the extra burden for employers under the proposed revisions to OPT rules. “Our concern is that when a student is hired for a STEM OPT extension, and the first thing they have to say to their employer is ‘oh, by the way, you have to sign this commitment statement, and sign a training pledge agreement, and you have to agree to report back to my school every six months, and you have to report that everything you’re doing for me is commensurate with what you are doing with all other employees in this position.’

It’s really onerous and it would be reasonable for an employer to look at that and say ‘whoa, I’m not touching that with a ten-foot pole, forget it.’”

The alternative, however, is much worse. If the new regulations are not finalised and accepted on 10 May, “Then on 11 May, we are in a world of hurt,” Ms Catmur said.

In that scenario, Ms Catmur and Mr Ware agree that immigration attorneys across the US would have a surge of visits from frightened students holding STEM OPT employment authorisation cards. Ms Catmur pointed out that employers are required to verify employment eligibility only at the time of hiring, so if STEM OPT authorisation is removed, a key question will be whether employers are in compliance if they continue to employ those students or if students would be required to volunteer to employers that they are no longer eligible for employment. DHS has not addressed this or any other “what if” issue at all, and “I can’t answer that question, no DSO can answer that,” says Ms Catmur.

“If there’s no new rule by 10 May or the judge says there’s something wrong, then it’s a mess. It could throw employers and students into complete chaos. Students would need to be immediately referred to an immigration lawyer,” if they had any ambitions to remain in the US, adds Mr Ware.

Both Ms Catmur and Mr Ware believe that such a doomsday scenario will not play out, that DHS will meet the deadline and the judge will accept the new regulations. “This is a high priority for DHS,” Mr Ware said, pointing out that the Obama administration has made expanding international education a prime component of its foreign policy legacy. “Everybody realises on all sides, except for the folks fighting this lawsuit, that we need to have a permanent fix here so that the students concerned won’t face such chaotic situations.”

The current uncertainty has been tough on students and DSOs alike. Ms Catmur spoke of students frozen with fear, not knowing what the future may hold for them or their families and afraid of losing job offers if the STEM OPT extensions are curtailed. With a clear tinge of frustration and anger in her voice, she adds, “Every adviser has a box of tissues on their desk, because people are crying. My advisers cry, and the students cry. It’s hard on everyone.”

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