Court ruling places US post-study STEM work rights at risk

A US federal court has set aside key post-study work provisions for foreign students in the US. In a 12 August 2015 ruling, Judge Ellen Segal Huvelle invalidated the Department of Homeland Security’s (DHS) 2008 17-month Optional Practical Training (OPT) extension rule. The 2008 regulations offer the following allowances for international students holding F-1 visas, and enrolled in specified science, technology, engineering, and math (STEM) fields:

• the ability to extend their OPT authorisation period from the previous limit of 12 months to a new maximum of 29 months;
• automatic H-1B work visa “cap gap” protection – that is, a built-in exception for F-1 visa holders pursuing OPT authorisations with respect to the annual cap on H-1B visas;
• the option to apply for an OPT authorisation within 60 days of graduation, as opposed to applying before graduation, as had been required previously.

DHS maintained that the 2008 regulations were introduced in response to an emergency situation, namely that thousands of highly skilled and US-trained graduates would otherwise have been forced to leave the country at that time. The judge, however, found that DHS did not clearly establish that any such emergency situation existed. Absent a clear-cut crisis, Judge Huvelle also held that DHS could not be exempted from standing notice and comment requirements, which were not met by the department in 2008, and therefore the OPT rules must be rendered invalid.

Rather than immediately invalidate the current regulations, however, the judge stayed her ruling for six months, with the clear intent of avoiding any undue hardship for students or employers.

The judge wrote in her decision, "The Court has no doubt that vacating the 2008 Rule would force ‘thousands of foreign students with work authorisations ... to scramble to depart the United States.’ Vacating the 2008 Rule could also impose a costly burden on the US tech sector if thousands of young workers had to leave their jobs in short order. The Court sees no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labour disruption for the technology sector. As such, the Court will order that the 2008 Rule – and its subsequent amendments – be vacated, but it will order that the vacatur be stayed. The stay will last until 12 February 2016, during which time DHS can submit the 2008 Rule for proper notice and comment."

What does this mean?

The stay of the judge’s decision clearly signals an opportunity for DHS to issue updated regulations – but this time in compliance with statutory requirements for public notice and comment.

If the department is successful in putting updated rules in place in time, we can imagine that STEM graduates may be able to pursue OPT authorisations under very similar conditions as they do now.

For the moment, OPT authorisations held by F-1 visa students remain valid. The National Law Review notes, "The US Citizenship and Immigration Services (USCIS) will continue to adjudicate pending applications, and new STEM OPT extension applications will be accepted at least through February 2016." If, however, new regulations are not successfully introduced in time:

• All current F-1 STEM OPT authorisations will be invalid when the stay lapses on 12 February 2016.
• H-1B cap gap protection will no longer be automatic, but will have to be triggered by public filings by DHS when the H1-B cap for the year has been met. This opens up some uncertainty with respect to this necessary protection from H1-B caps for both employers and F-1 visa holders.
• The 60-day post-graduation application window for OPT authorisations will be eliminated, and F-1 students will then need to apply for an authorisation prior to graduation.

What does this really mean?

The judge’s ruling means in essence that DHS has six months to get regulations in place that can withstand any such court challenge. Timing will be key, as the statutory requirements require a three-month period for public notice and comment.

One month has already lapsed since Judge Huvelle ruled on the matter, and this means that DHS will need to introduce its new rules within the next month or two if it is to have updated regulations in place before the judge’s ruling comes into effect.

The department is being egged on in its efforts by an online petition - with more than 100,000 signatories at this writing - which urges "the White House to put in place a new, properly processed set of rules for the extension of the STEM OPT before February 2016." Indeed, legal experts and observers clearly anticipate a timely introduction of replacement regulations. The National Law Review said recently, "Because this is an important issue for both students and a large number of employers that depend on high-tech workers in the STEM fields, we expect that the new guidance will be issued before the 12 February 2016 deadline."

Much at stake

In the meantime, there is much at stake as the current OPT provisions for STEM graduates hang in the balance. As the legal news and analysis site Lexology puts it, "The invalidation of the 2008 rule is concerning because employers and students have relied on these provisions for seven years and have made hiring, promotion, and staffing decisions in reliance on the work authorisation conveyed under the STEM OPT rule. Alternative work visa options are extremely limited for F-1 students on STEM OPT, particularly considering restrictions around H-1B visas, so the United States will undoubtedly suffer from brain drain because foreign students in STEM degree fields will be trained in the United States and have to leave the country to work for foreign competition." The issue is sharply drawn by a hard cap on the number of H-1B visas that can be issued each year. The US Congress has established an annual cap of 65,000 H-1B visas, with a further 20,000 visas available to foreign graduates who have obtained a US master’s degree or higher.

The problem is, as the Law Review highlights above, that these caps are generally reached within the first days of applications being opened for the year.

In contrast to that established ceiling for US work visas, IIE’s Open Doors reports that 11.7% (105,997) of the 886,052 international students enrolled at US colleges and universities in 2013/14 were granted an OPT work authorisation. The latest SEVIS by the Numbers data, meanwhile, has it that there are 405,314 foreign STEM students in the US as of August 2015 (representing roughly 38% of all international students in America).