Guidance To The Perplexed After USCIS Sneaks In Ban On Third-Party Placement Of STEM OPT Workers

Recently, without any prior notice, USCIS quietly updated its STEM OPT webpage to reflect a ban on the placement of STEM OPT workers at third-party client sites. As background, on March 11, 2016 the Department of Homeland Security (DHS) published a final rule amending regulations to expand Optional Practical Training (OPT) for students with U.S. degrees in Science, Technology, Engineering, or Mathematics (STEM). This new rule took effect on May 10, 2016 and replaced the 17-month STEM OPT extension previously available to STEM students most significantly expanding the extension period to 24 months. The rule set forth various requirements that must be met by schools, students and employers. Briefly, in order to obtain 24-month STEM OPT, the employer must have an Employer Identification Number (EIN) and be enrolled in the E-Verify program. The employment opportunity must be directly related to the student’s qualifying STEM degree and there must be an employer-employee relationship between the employer and the student.  Therefore, employment for staffing agencies where an employer-employee relationship is not maintained or other labor-for-hire arrangements will not qualify. Within 10 days of the employment start date, the student and the new employer must complete a Training Plan on Form I-983 and submit it to the Designated Student Officer (DSO). I previously blogged about STEM OPT here where I examined the Form I-983.

In another blog, I specifically examined whether the student could be employed at a third-party client site and argued that there isn’t anything in the governing regulations that expressly forbids this type of employment. The employer should be able to satisfactorily demonstrate the employer-employee relationship and its control over the student despite placement of the student at an end client site. The Form I-983 must, among other things: (1) Identify the goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student; (2) explain how those goals will be achieved through the work-based learning opportunity with the employer; (3) describe a performance evaluation process; and (4) describe methods of oversight and supervision. Although having the student work at a client site makes for a more difficult case, I opined that if the employer already has employees at that site who can implement the employer’s training program by providing the training, on-site supervision and evaluation of the student, then the Form I-983 ought to be approvable. Since the implementation of the STEM OPT rule, thousands of students have obtained the required authorization to receive their STEM OPT at third party client sites. This authorization required the full disclosure of the employment arrangement to the DSO.

USCIS recently updated its website to now state:

[T]he training experience must take place on-site at the employer’s place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct employer site visits to ensure that the employer is meeting program requirements. This means that ICE must always have access to a student’s worksite; if the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.

Based on this update, the placement of a STEM OPT worker at a third-party client site is apparently unacceptable because ICE lacks authority to visit third-party client sites.  No explanation was provided as to exactly why ICE supposedly lacks the authority to conduct a site visit on the premises of a third-party client if that client site had been clearly listed on an approved Form I-983. The Form I-983 sets forth that DHS may, at its discretion, conduct a site visit. It would be reasonable to conclude that by listing a third party client site as the student’s work location on the I-983, that the worksite is open to a site visit by ICE.

By updating the USCIS website with no prior notice and no opportunity for comment, USCIS has effectively created a state of confusion and has left employers and students, with previously approved Forms I-983, unsure of what action they must now take. Have employers been unknowingly violating the STEM OPT rule? Will USCIS now deny H-1B petitions for change of status for OPT students employed at third party client sites? Despite a denial of a request for a change of status, the underlying H-1B petition could still be approved but the STEM OPT worker would have to leave the US and apply for an H-1B visa abroad, a process that can come with its own set of issues such as administrative processing delays that can force the visa applicant to remain abroad for weeks or even several months.

Should employers scramble to relocate all STEM OPT workers to their headquarters or other office locations? And, if they do relocate them, would this change in worksite location be considered a material change necessitating a modification of the approved I-983? Based on how USCIS chose to update the STEM OPT rule, there are no immediate and definitive answers to these questions. However, some immigration attorneys are advising employers to relocate STEM OPT workers to headquarters or other office locations where there would be no question regarding ICE’s authority to conduct a site visit. On the issue of a relocation being a material change, while the regulations at 8 C.F.R. §214.2(f)(10)(ii)(C)(9)(ii) do not specifically list relocation as an example of a material change, relocation is considered a material change in the H-1B context which leads one to think that it would similarly be considered in the STEM OPT context. Also, there is the potential practical problem of the student not being at the location listed on the I-983 when ICE attempts to conduct a site visit. On the other hand, since USCIS claims that ICE would not go to a client site anyway, due to a supposed lack of authority to do so, then there is a good argument that a relocation is not a material change that necessitates a modification of the I-983.

Is there any basis for continuing to employ STEM OPT workers at third-party client sites? Some immigration attorneys are advising employers to stay the course while we wait for additional guidance regarding USCIS’ update to its STEM OPT page. One main basis is the fact that the Student and Exchange Visitor Program (SEVP) is governed by ICE and not by USCIS and therefore ICE ought to present any amendments to the program. Another reason is the fact that the mere modification of a web page does not have the same force as an amendment to the regulation or a Policy Memorandum. USCIS should issue a proposed regulation and allow a period for public comment. In addition, provided all the requirements are being met under the regulations found at 8 C.F.R. §214.2(f)(10)(ii)(C)(6)-(12), then the employer’s decision to continue to employ the STEM OPT worker at the third party client site may be justifiable. The following could serve as a reasonable defense although there is no guarantee that the DHS will agree:  Under 8 C.F.R. §214.2(f)(10)(ii)(C)(7)(ii), the I-983 clearly identified the goals of the training and explained how these goals would be met through a work-based learning opportunity with the employer and described the employer’s performance evaluation process including how oversight and supervision would occur at the third party client site perhaps by the employer’s more senior staff also stationed at that site.  This in turn may also meet the requirement under 8 C.F.R. §214.2(f)(10)(ii)(C)(10)(i) that the employer have sufficient resources and personnel to provide the training. Furthermore,  if ICE would be welcomed at the client site (similar to how USCIS site visits are welcomed in the H-1B context) where ICE could satisfy itself that the employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences (8 C.F.R. §214.2(f)(10)(ii)(C)(11)), then the mere fact that the STEM OPT worker is stationed at a third party client site ought not invalidate a previously approved placement.

Still, the practical fallout may not be worth it and employers and students alike are justifiably worried.  There are many unanswered questions and employers are hesitant to make any changes when it is not clear that these changes are actually required under the regulations. It appears that this is yet another way that USCIS is seeking to comply with President Trump’s Buy American, Hire American Executive Order that allegedly protects US workers. The ultimate success of a challenge to USCIS’ modification of their webpage is therefore hard to predict. But what is also clear is that the STEM OPT rule ought to encompass all kinds of modern work arrangements, including working at third party sites. US businesses should not be deprived of the opportunity to engage talented foreign students. DHS ought to bear in mind that the industries which rely on assigning workers to third party client sites – such as the Information Technology industry – are the industries that give American businesses that necessary competitive edge. It is not clear how seeking to destroy theses industries by wholly affecting how they do business is supposed to make America great again.


RAISE Act Will Hurt Immigrants, Americans and America

Last week, President Trump lent full throated support towards the Reforming American Immigration for a Strong Economy Act (RAISE Act), which will dramatically alter the immigration system in the United States the way we know it. Although this bill, proposed by Republican Senators Cotton and Purdue has little chance of moving through Congress, it has drawn significant attention as it intends to redefine America’s immigration experience over the last two centuries.

The RAISE Act deemphasizes immigration through the family, and instead creates a points system based on skills. A successful applicant must get at least 30 points.  The bill insists on English language proficiency, and allocates 0 to 12 points based on test scores. Those with US professional degrees or a doctorate in a STEM field will get the maximum of 13 points for education. By contrast, a high school diploma gets 1 point, a foreign bachelor’s degree gets 5 points, a US bachelor’s degree gets 6 points, a foreign master’s degree in a STEM field will get 7 points, a US master’s degree in a STEM field will get 8 points and a foreign professional degree or doctorate in a STEM field will get 10 points.

The younger one is the more points he or she will get, and those within the 26-30 years age range will get the maximum of 10 points. 25 big points are given for extraordinary achievement, but you must have won a Nobel prize or gained comparable recognition in a field of scientific or social scientific study. There are no comparable points for extraordinary achievement in the arts or business fields. For sportspeople, you will get 15 points if you won an Olympic medal or placed first in an international sporting event in which the best athletes in an Olympic sport were represented. Those with job offers, based on how much the offered wage will be over the median salary in the state where the job is located, will also get points ranging from 5 to 13. Investment in a new commercial enterprise at $1,350,000 will fetch 6 points; and an investment of $1, 800,000 will fetch 12 points.

The bill eliminates the diversity lottery program, or green card lottery, which awards 50,000 visas annually through a lottery from countries with low rates of immigration to the United States. It caps the number of refugees granted permanent visas to the United States at 50,000 per year. Most devastatingly, the RAISE Act eliminates all the family preferences, and only maintains the preferences for spouses and minor children of permanent residents. Parents of US citizens will no longer be treated as immediate relatives, but can come on renewable temporary visas. The definition of a minor child is changed from 21 to 18. The worldwide family quota is cut from 480,000 to 88,000 minus the number of people paroled into the United States who have not departed within 365 days and have not received a green card within 2 years of getting parole status. Pending family based petitions are voided except for those that are scheduled to get green cards within one year and entry into the United States must happen within one year of the bill’s enactment.

Most pro-immigration reform advocates have not supported this bill, except for some notable  exceptions like Vivek Wadhwa who wrote Why As An Immigrant, I am Not Outraged By Trump’s Immigration Proposal. On the other hand, restrictionist immigration organizations such as FAIR and Numbers USA have readily embraced the bill. The reason for their ready embrace is that the RAISE Act drastically cuts immigration levels, and the points system will prove to be unworkable.  Steven Miller, a senior White House aide and one of the architects of RAISE Act and the travel ban, famously got into a heated exchange with CNN’s Jim Acosta. Acosta asked Miller if the bill would violate the spirit of the poem New Colossus, inscribed at the base the Statue of Liberty, which includes the famous line: “Give me your tired, your poor, Your huddled masses yearning to breathe free.” Miller retorted that the statue is “a symbol of American liberty lighting the world” and the “the poem that you were referring to was added later and was not part of the original Statue of Liberty”, and then went on to combatively quiz Acosta on what level of immigration would violate his “Statue of Liberty law of the land”.  The RAISE Act also appears to be a xenophobe’s delight as its main aim is to restrict immigration levels. Mr. Wadhwa, who is not a xenophobe and is pro-immigrant, approaches his embrace of the bill differently by arguing that the US immigration system needs to attract skilled talent on green cards, rather than temporary H-1B visas, so that they can start the next generation of great companies in the United States rather than depart the United States under our current imperfect system and start companies in competitor nations like China.

Wadhwa certainly has a point. We need to reform our immigration system to keep skilled talent, but not at the expense of decimating everything else, including the values represented by the Statute of Liberty. Most economists credibly argue that more immigrants create more jobs, and that restricting immigrants will not necessarily create more jobs for American workers. The RAISE Act keeps intact the annual 140,000 limit for employment-based immigrants that was set in the Immigration Act of 1990, in addition to drastically restricting all other visa categories. Although per country limits are abolished, derivative family members are counted as part of the 140,000 limit which will eat into the pie.  It provides no pathway to permanent residence for lower skilled but essential workers who support the American economy. Despite conflicts of interest, even President Trump’s Mar-a-Lago filed labor applications with the Department of Labor for 15 housekeepers, 20 cooks and 35 servers. Trump’s golf course in Jupiter, FL filed labor applications for 6 cooks. These are for temporary H-2B visas with no green cards at the end of their temporary stay.

Worse still, RAISE Act is cruel to the hundreds of thousands of beneficiaries of approved I-140 petitions from India and China who are caught in the crushing employment-based second and third preference employment backlogs. The bill does not grandfather them, implying that they will need to re-apply under the new points system after waiting for over a decade. Since they have gotten older by 10 or more years, they will lose out on maximum points for age. If their approved I-140 immigrant visa petitions are based on non-STEM degrees, even if they have PhDs, they will not get the same points for education as those with master’s degrees in STEM fields. Even people caught in the China EB-5 backlog will unduly suffer. When they reapply, they will not get any points on the $500,000 investments they have already made as the investment threshold in the RAISE Act that will fetch points have been substantially increased, and they will also likely lose out on English skills.  One can also imagine the backlogs that will be created when hundreds of thousands of in the existing employment-based preferences apply under the points system of the RAISE Act. People will be re-applying over and over again.  The RAISE Act points system, which seems to be a bastardized version of the Canadian and Australian point systems, could lead to other absurd results. If you are 46-50, have English scores in the 6th or 7th decile, have a foreign bachelor’s degree, and have a lucrative job offer, you are flatly disqualified from coming under this system.  Even if you’re age 41-45, and so get 4 points for age rather than 2, you would have only 28 points total and be completely ineligible.  No wonder that FAIR and Numbers USA love the RAISE Act. Mr. Wadhwa ought to rethink his position.

Immigrants with all sorts of backgrounds contribute to the United States, and it is fallacious to think that only those with STEM degree will. If a famous restaurant specializing in North Indian cuisine cannot hire a good tandoori chef on a permanent basis, then the restaurant will not be able to prosper and hire additional restaurant managers, catering supervisors and bartenders from among the US workforce. America, therefore, needs both STEM graduates and Tandoor chefs! Moreover, a nation needs both social justice and good economics; indeed, social justice is the best economics. Therefore, cutting refugee admissions is not a good idea.  A good example of the synergy between social justice and economics is Sergey Brin, who is the co-founder of Google. He came to the United States with his parents at the age of six because they faced anti-Semitism in their native Russia. Although Brin graduated from Stanford in computer science, he did not come to the US on an H-1B visa or would have benefitted under a hypothetical RAISE Act points system.  His parents were able to come into the United States based on an immigration program that was designed to protect foreign nationals from intolerance in their native countries. Still, Brin after coming to the US as a youngster was able to go on to found Google, considered one of America’s best and most innovative companies today. The insistence on learning English before one arrives is also not necessary. Indeed, culture through dance, food and music is best preserved through the language of the country where it emanates, and America will be that much more enriched if it embraces the authentic cultures of immigrants who in good time will learn English – surely, their descendants will speak English.

We should have immigration reform that admits more immigrants rather than less, as David Bier has cogently argued in a recent NY Times Op-Ed. A points system is fine if it compliments other existing immigrant visa categories. A good example was S. 744 that was passed by the Senate in 2013 in a bipartisan manner that comprehensively reformed the immigration system by expanding pathways to permanent residence, and also included a merits system. The RAISE Act does not do this and  is a terrible idea, and furthers Trump’s America First agenda, which like his proposed wall on the Mexico-US border, is based on dubious economics and has not yet proven to have any merit.  While the RAISE Act bans low skilled workers, it may also attract PhDs who may drive Ubers in America. This has been the experience in Canada under the points system, where highly qualified people have immigrated without being matched with jobs. Unlike Mr. Wadhwa,  I am justifiably outraged as an immigrant by Trump’s immigration proposal.

Can a STEM OPT Student Be Employed At A Third Party Client Site?


The most frequently asked question in response to my recent blog entitled, “A Closer Look At The Form I-983 – Training Plan for STEM OPT Students”,  is whether a STEM OPT student can be employed at a third party client site or at multiple client sites. I would argue that the answer to this question ought to be YES! Since the new rule only took effect on May 10, 2016, there isn’t yet any strong anecdotal evidence on whether Designated Student Officers (DSO) will approve Forms I-983 which set forth training to take place at client sites. However, there isn’t anything in the governing regulations that expressly forbids this type of employment.

This is a big issue for many students and employers because under the standard 12-month OPT program, the employer may employ the student in a regular job, even at third party sites, as long as the employment is related to their major area of study in the US. However, in order for the student to obtain a 24-month STEM OPT extension, the employer and student, through the submission of the Form I-983 to the DSO, must demonstrate that the student will be employed only as a trainee. The Form I-983 specifically requires the employer to attest that the student will “receive on-site supervision and training by experienced and knowledgeable staff” and that the employer “has sufficient resources and personnel to provide the training and is prepared to implement the program.” Department of Homeland Security (DHS) has made it clear in the preamble to the new regulations that the STEM OPT extension is not apt for certain types of employment arrangements which include multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. Students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Form I-983, and the employer that signs the Form I-983 must be the same entity that employs the student and provides the practical training experience.

None of the above listed requirements prevent the employment of a STEM OPT student at a third-party client site. I would argue that the issues surrounding such employment are similar to the issues surrounding the employment of an H-1B beneficiary at a third party client site. In the case of the H-1B, the employer must also establish that a valid employer-employee relationship will exist with the H-1B beneficiary throughout the requested H-1B validity period. By now, most H-1B employers are used to the USCIS requirements published in its memo entitled, “Determining Employer-Employee for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (“the Neufeld Memo”). Under the Neufeld Memo, in considering whether or not there is a valid “employer-employee relationship,” USCIS must determine if the employer exercises a sufficient level of “control” over the prospective H-1B employee. To demonstrate control, the employer can submit various evidence including a copy of its employment agreement with the prospective employee; copies of its contractual agreement(s) with the end client where the employee will work; a letter from the end client describing its relationship with the employer and the prospective employee; sample staff evaluation forms to demonstrate how the employee will be evaluated; a clear description of how employee supervision will be conducted; a list of the various benefits provided to the employee by the employer; and so on.

I would argue that similarly, in the case of the STEM OPT student, the employer should be able to satisfactorily demonstrate its control over the student despite placement of the student at an end client site. Under the final rule, the Form I-983 must, among other things: (1) Identify the goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student; (2) explain how those goals will be achieved through the work-based learning opportunity with the employer; (3) describe a performance evaluation process; and (4) describe methods of oversight and supervision. Admittedly, having the student work at a client site makes for a more difficult case. However, if the employer already has employees at that site who can implement the employer’s training program by providing the training, on-site supervision and evaluation of the student, then the Form I-983 ought to be approvable.  The employer may face a more insurmountable hurdle in a case where the student would be its only employee stationed at the client site. In such a case it would be very difficult to argue that the employer will provide a structured and guided work-based learning experience for the student, although a case could still potentially be made for a bona fide training program if the employer has ready access at the site to supervise the trainee.

With regard to multiple worksites, in the preamble to the regulations, DHS made it clear that the Form I-983 may incorporate provisions for project, position, or department rotations that directly relate to the STEM student’s field of study, provided there will be appropriate supervision during each rotation and the employer otherwise meets all relevant requirements. Similarly, changes in client site locations can be well documented and explained upon submission of the Form I-983. New and previously unforeseen changes can always be addressed through the preparation and submission of a modified Training Plan to the DSO.

The fact that the Form I-983 must be submitted to the DSO and not to DHS is significant because with filings submitted to DHS, there is usually a filing fee and the potential for costly (time and money) rejections by an inaccessible, unseen and unknown officer. A DSO is an individual who is typically more accessible. Should the DSO not approve the initial Form I-983, there should, hopefully, be more of an opportunity for the employer and student to understand the Training Plan’s defects and to provide additional information in a new submission.

The new STEM OPT rule would allow talented students who have graduated from US universities in vital STEM fields to remain for an additional 24 months. As a result, the rule must encompass all kinds of modern work arrangements, including working at third party sites. Otherwise, entire industries, including IT, management consulting or accounting, would be deprived of engaging talented foreign students. Foreign students can also benefit by receiving training in industries whose business model relies on assigning employees to third party client sites. It is industries that rely on assigning workers to third party sites that give American businesses a competitive edge by providing them with much needed flexibility. They should not be left out from the new rule!

A Closer Look At The Form I-983 – Training Plan for STEM OPT Students

As we previously blogged about here, on March 11, 2016 the Department of Homeland Security (DHS) published a final rule amending regulations to expand Optional Practical Training (OPT) for students with U.S. degrees in Science, Technology, Engineering, or Mathematics (STEM). This new rule will take effect on May 10, 2016 and will replace the 17-month STEM OPT extension previously available to STEM students most significantly expanding the extension period to 24 months. But the new rule sets forth various requirements that must be met by schools, students and employers. In addition, it raises questions regarding how OPT will be perceived going forward.

The standard 12-month OPT program will remain intact. Eligible students can still engage in a 12-month program of OPT during or after the completion of an academic program. They can work at a regular job for any US employer for the duration of the authorized OPT period provided the employment qualifies as related to their major area of study in the US. But one of the more confusing aspects of the STEM OPT program is that even after engaging in regular employment for 12 months, a student wishing to apply for a STEM OPT extension, will have to prove, through submission of an elaborate Training Plan, that he or she will, for the next 24 months, be no more than a mere trainee! When questioned about this, DHS rejected the notion that students who have completed the 12-month OPT period should be considered “seasoned trainees” who don’t need this new Training Plan. The new Training Plan also leaves us with questions as to what will now be considered “training” as far as OPT is concerned.

In order to obtain this new 24-month STEM OPT, the employer must have an Employer Identification Number (EIN) and be enrolled in the E-Verify program. [revised 06/07/16].  The employment opportunity must be directly related to the student’s qualifying STEM degree and there must be an employer-employee relationship between the employer and the student.  Therefore, employment for staffing agencies where an employer-employee relationship is not maintained or other labor-for-hire arrangements will not qualify. [revised 06/07/16].  The student is also not permitted to engage in concurrent employment for multiple employers during the STEM OPT period but is permitted to change STEM OPT employers. Within 10 days of the employment start date, the student and the new employer must complete a Training Plan on Form I-983 and submit it to the DSO.

Let’s take a closer look at this elaborate Training Plan on Form I-983.

SECTION 1: Student Information

This section of the Form I-983 must be completed by the student and requires the student to provide information on the school recommending STEM OPT and the school where the STEM degree was earned if different from the recommending school. A student may be eligible for a STEM extension based on a previously earned STEM degree which is different from the school of most recent enrollment from which the DSO will be recommending STEM OPT. This section also requires information about the STEM degree; the student’s SEVIS number; and the dates of the specific STEM OPT requested period.

A student previously granted a 17-month STEM OPT and now seeking a new 7-month extension must have at least 150 days remaining on the 17-month STEM OPT Employment Authorization Document (EAD) on the day that the USCIS receives the application for the 7-month extension. The student must file for a 7-month extension on Form I-765, Application for Employment Authorization, between May 10 and August 8, 2016. Applications will no longer be accepted after August 8, 2016.

SECTION 2: Student Certification

By signing this section of the Form I-983, the student will certify, under penalty of perjury, that the training is related to the STEM degree and that he or she:

  • Has reviewed, understands and will adhere to the Training Plan;
  • Will notify the DSO if the employer is not providing the training as per the plan;
  • Understands that DHS may deny, revoke or terminate the STEM OPT of students who it determines are not engaging in the training under the plan; and
  • Will notify the DSO at the earliest opportunity of any material changes or deviations from the Training Plan.

If there are material modifications to or deviations from the Training Plan during the STEM OPT extension period, the student and employer must, within 10 days of the change, sign a modified Training Plan reflecting the material changes, and the student must file this modified Training Plan with the DSO at the earliest available opportunity. Material changes include any change of EIN resulting from a corporate restructuring; any reduction in compensation from the amount previously submitted on the Training Plan that is not the result of a reduction in hours worked; and any significant decrease in the hours per week that a student will engage in the STEM training opportunity. DHS has explained that, basically, a material change is any change from the existing Training Plan that would render an employer or student’s attestation inaccurate, or render inaccurate the information in the Training Plan on the nature, purpose, oversight, or assessment of the student’s practical training opportunity.

SECTION 3: Employer Information

This section of the Form I-983 must be completed by the employer and requests basic information such as the employer’s name, address and number of employees. The employer must indicate the number of hours of work per week, which must be at least 20 hours (except when the student is granted leave under the employer’s standard leave policy, e.g. vacation or sick days) and the offered compensation.

An unpaid, volunteer position may not form the basis of a STEM OPT extension. However, DHS has interpreted “compensation” to include wages and other forms of remuneration, including housing, stipends, or other provisions typically provided to employees. The total compensation must be commensurate with that typically provided to US workers possessing similar skills and experience, and performing similar duties.

SECTION 4: Employer Certification

By signing this section of the Form I-983, the employer will certify, under penalty of perjury, that:

  • The Training Plan has been reviewed and understood and will be followed;
  • The DSO will be notified of any material changes;
  • The termination or departure of the student during the authorized OPT period will be reported to the DSO within 5 business days;

DHS has determined that an employer “knows” a student has left the OPT opportunity once that student has not reported for training for 5 consecutive business days without the employer’s consent. Business days do not include federal holidays or weekend days.

In this section of the Form I-983, the employer also certifies that it will adhere to all regulatory provisions that govern the Training Program. These include:

  • The student’s practical training is directly related to the STEM degree that qualifies the student for the STEM OPT extension;
  • The student will receive on-site supervision and training by experienced and knowledgeable staff;
  • The employer has sufficient resources and personnel to provide the training and is prepared to implement the program;
  • The student will not replace a full-time, temporary or permanent US worker and the terms of conditions of the students employment are commensurate with similarly situated workers; and
  • The training complies with all applicable Federal and State employment requirements.

DHS has explained that the barred “replacement” of U.S. workers refers to the loss of existing or prior employment. The employer is not barred from discharging an underperforming employee simply because it also hired a STEM OPT student. DHS states that it will look at the totality of the circumstances to assess compliance with the non-replacement certification.

This section of the Form I-983 also sets forth that DHS may, at its discretion, conduct a site visit of the employer to ensure that the Training Program’s requirements are being met and that the employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent with the Training Plan. DHS may contact the employer, the student or the DSO in person or via telephone or email to obtain information. Based on previous on-site-reviews of schools, DHS estimates that an employer site visit may include review of records and questions for the supervisor, and will take five hours per employer. DHS will provide notice to the employer 48 hours in advance of any site visit, unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations, in which case DHS may conduct an unannounced site visit. Immigration and Customs Enforcement (ICE) currently intends to use federal employees for the site visits. There may be times when contractors accompany federal employees, but ICE currently intends that federal employees will be in charge of such visits.

SECTION 5: Training Plan for STEM OPT Students

In this section of the Form I-983, the student and the employer must enter the contact details of the individual who will be responsible for monitoring the student’s goals and performance and must describe:

  • What tasks and assignments the student will carry out during the training and how these relate to the STEM degree;
  • The training curriculum and timeline including the specific goals and objectives of the program;
  • The specific skills, knowledge and techniques the student will learn or apply;
  • How the student will achieve the goals;
  • How the employer will provide oversight and supervision; and
  • How the employer will measure and confirm whether the student is acquiring new knowledge and skills.

SECTION 6: Employer Official Certification

Here the employer must certify, under penalty of perjury that:

  • It has reviewed, understands and will follow the Training Plan;
  • It will conduct the required periodic evaluations of the student; and
  • It will notify the DSO regarding material changes or deviations from the Training Plan.

The employer’s official who signs this section of the form need not be the same person who signed on behalf of the employer in section 4.

Also on the Form I-983, the student must provide a self-evaluation which the employer must review for accuracy and sign. DHS states that the student evaluation is intended to confirm that the student is making progress toward his or her training objectives and it differs from typical employer evaluations which focus more on how well an employee is performing his or her duties. Evaluations must be completed every 12 months (i.e. at the 1 year mark and at the end of the 24 month STEM OPT period) as DHS believes that this better reflects normal employer practices where annual reviews are standard. Any appropriate individual in the employer’s organization with signing authority can sign the evaluations that the student will submit to the DSO.

USCIS will begin accepting applications for a 24-month extension on May 10, 2016. The student must submit the completed and executed Training Plan to the DSO and obtain a newly endorsed Form I-20 recommending the 24-month STEM extension. The student must file an application for employment authorization within 60 days of the DSO’s endorsement and no more than 90 days before the 12-month EAD expires. Students will get an automatic 180-day extension of their work authorization if their initial 12-month OPT EAD expires while the STEM OPT EAD application is still pending.

There may be some hiccups ahead as students, employers and DSOs get used to the new rule. DHS has expressed its awareness of the fact that the new requirements will require training to ensure that all affected parties understand their role in the process. But DHS has also expressed its confidence in the abilities of DSOs to review Training Plans and has clarified that the DSO need not possess technical knowledge of STEM fields of study or conduct additional outside research into a particular employer but need only confirm that the Training Plan (1) explains how the training is directly related to the student’s qualifying STEM degree; (2) identifies goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student, and explains how those goals will be achieved through the work-based learning opportunity with the employer; (3) describes a performance evaluation process to be utilized in evaluating the OPT STEM student; and (4) describes methods of oversight and supervision that generally apply to the OPT STEM student. The DSO should also ensure that all form fields are properly completed. DHS will find that the DSO has met his or her obligation under the rule if the Training Plan meets these requirements. DHS believes that its power to conduct site visits; request to review Training Plans; withdraw DSO certifications; and withdraw a school’s participation in the F-1 program will provide the necessary checks to ensure the new program’s success.

The new STEM OPT Training Plan effectively changes the way OPT has been viewed previously and also could potentially create contradictions. As previously mentioned, a student under the 12-month OPT need not have submitted to such an elaborate Training Plan, but now during the STEM OPT extension phase, would have to revert to being a trainee rather than an employee. This Training Plan would also stymie students who have created their own startups. While students may be employed by start-up businesses on STEM OPT, students may not provide employer attestations on their own behalf. Therefore, a self-employed entrepreneur and sole founder of a business with no employer-employee structure would need to make modifications to the business model in order to meet the STEM OPT requirements. It also remains to be seen whether STEM OPT would have to imitate the standard under the J-1 and H-3 visa programs, where productive work has to be incidental to the training. It would be completely contradictory if a student during the 12-month OPT could engage in productive work, but to be granted a STEM OPT extension would have to forego productive work in favor of training, as imposed under the H-3 and J-1 programs. It is hoped that DHS does not emphasize too much on training, recognizing that foreign students who have graduated in STEM fields ought to be able to unleash their talents in creating innovative startups that will lead to economic growth, change business models and paradigms, resulting in new job opportunities for thousands if not millions of American workers.


Opportunity Knocks in Disappointing Decision Vacating Stem Optional Practical Training Rule for Foreign Students

Adversity is the mother of progress

Mahatma Gandhi

I was at first greatly disappointed to find out that a federal district court judge vacated the 2008 STEM Optional Practical Training rule that extended practical training to F-1 students by an additional 17 months. However, if one reads Washington Alliance of Technology Workers (WashTech) v. DHS closely, the decision does not look so bad and provides an opportunity for the Obama administration to further expand STEM practical training, as promised in the November 20, 2015 executive actions for skilled workers.

Foreign students can receive up to 12 months of OPT upon graduation. In 2008, the Department of Homeland Security under President Bush’s administration published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. Plaintiffs WashTech challenged both the 12 month OPT and the STEM OPT. The challenge to the original 12 month OPT rule was dismissed, but on August 12, 2015, U.S. District Judge Ellen Segal Huvelle vacated the rule that extended OPT by 17 months for a total period of 29 months for STEM graduates. The 2008 rule was published without notice and comment, and the court agreeing with the plaintiffs ruled that the DHS had not shown that it faced a true emergency situation that allowed the agency to issue the rule without notice and comment.

It is disappointing that Judge Huvelle granted plaintiffs standing in the first place on the flimsy ground that they were currently employed as computer programmers, who were a subset of the STEM market. [Contrast this with the DC Circuit Court of Appeals ruling in Arpaio v. Obama  two days later dismissing Sherriff Arpaio’s standing claim on the spurious grounds that the executive actions would serve as a magnet for attracting more undocumented immigrants to Arizona and fewer people would be deported as a result of these executive actions.] Although the plaintiffs in WashTech were not unemployed, Judge Huvelle speculated that “[a]n influx of OPT computer programmers would increase the labor supply, which is likely to depress plaintiffs’ members’ wages and threaten their job security, even if they remained employed.” It is also somewhat amusing that the judge found the F-1 and H-1B interrelated in order to justify that plaintiffs also had standing under the “zone of interests” doctrine. Without considering that the F-1 visa requires a non-immigrant intent while the H-1B allows for dual intent, the judge held that “F-1 and H-1B perform the interlocking task of recruiting students to pursue a course of study in the United States and retaining at least a portion of those individuals to work in the American economy.”

While this is the bad part of WashTech, the good news is that Judge Huvelle left intact the legal basis for the OPT rule on the ground that the DHS is entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Pursuant to the oft quoted Chevrondoctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts. Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it.

Judge Huvelle in WashTech agreed that under Step 1 of Chevron, the provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is  ambiguous and that Congress has not clarified the word “student”. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after he or she has completed the educational program. Under Step 2 on Chevron, the 2008 rule was held to be a reasonable interpretation of the ambiguous statutory provision.  For over 50 years, Judge Huvelle acknowledged, the government has allowed students to engage in practical training relating to their field of studies, which Congress has never altered. Indeed, in the Immigration Act of 1990, Congress included a three-year pilot program authorizing F-1 student employment for positions that were “unrelated to their field of study.” Congress would only do this, Judge Huvelle reasoned, because Congress recognized that practical training regulations long existed that allowed students to engage in employment in fields related to their studies. The decision goes into fascinating detail describing the history of practical training from at least 1947. Even after Congress overhauled the law in 1952, practical training continued, and still continued even after the Immigration Act of 1990 overhauled the H-1B visa by setting a numerical limit and imposing various labor protections. The decision also cites old Board of Immigration Appeals decisions recognizing practical training such as Matter of T-, 1 I&N Dec. 682 (BIA 1958), which noted that the “length of authorized practical training should be reasonably proportionate to the period of formal study in the subject which has been completed by the student” and only in “unusual circumstances” would “practical training…be authorized before the beginning of or during a period of formal study.”

Judge Huvelle finally and unfortunately, agreeing with the plaintiffs,  held that there was no emergency to justify the promulgation of the 2008 rule without notice and comment. H-1B oversubscription as a reason for the emergency in 2008 was “old hat” as the government conceded that the H-1B program has been consistently oversubscribed since 2004. Fortunately, Judge Huvelle sensibly realized that vacating the rule immediately would force “thousands of foreign students with work authorizations…to scramble to depart the United States.” Hence, the court stayed vacatur till February 12, 2016 during which time the DHS can submit the 2008 rule for proper notice and comment.  In the meantime, foreign students in STEM OPT have some respite, and those who are eligible for STEM OPT should be able to apply for a 17 month extension so long as they do so before February 12, 2016, although we need some affirmative guidance from the USCIS on this.

The DHS now has a golden opportunity to expand practical training through notice and comment even beyond a total of 29 months, and must do so on or before February 12, 2016 in compliance with the WashTech decision. Despite the protestations of Senator Grassley, who like WashTecstridently opposes the notion of foreign student practical training, Judge Huvelle’s decision has blessed the legal authority of the DHS to implement practical training under Chevrondeference. As discussed in my prior blog, Senator Grassley in his angry missive to the DHS had leaked that the DHS was  moving on new regulations to allow foreign students with degrees in STEM fields to receive up to a 24 month extension beyond the original 12 month OPT period even prior to the final Washtech decision.  If a student obtains a new degree, he or she can again seek a 24 month extension after the original 12 month OPT period. The proposed regulations would further authorize foreign graduates of non-STEM  degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

While this will put tremendous pressure on the DHS to propose a rule for notice and comment before February 12, 2016, it would be well worth it before all talented foreign students who would otherwise benefit the United States are forced to leave. As a result of the H-1B cap, it is the STEM OPT that has allowed foreign students to be employed in the United States. The prospect of no STEM OPT combined with the limited number of H-1B visas annually would be devastating not only for the tech sector, but for American universities, foreign students and for the overall competitiveness of the United States.  WashTech may have successfully been able to obtain a vacatur of the 2008 rule effective February 12, 2016, but theirs is only a Pyrrhic victory since the court has essentially endorsed the legality of both the 12 month practical training periods and any extensions beyond that.

Wanted: Great STEM and Tandoori Chicken

By Gary Endelman and Cyrus D. Mehta

There is no doubt that a Startup Visa would unleash amazing entrepreneurial activity in the United States, which would result in many jobs. The latest version of the Startup Visa Act 3.0 would provide 75,000 visas to individual who are already here in F-1 and H-1B status if their companies receive an investment of $100,000 per year and employ a minimum of two workers in the first year. A three year visa would be given to those who meet this condition. If within the three years, they employ an additional worker each year, they can apply for permanent residency.

According to a Kauffman Foundation study, the Startup Visa could conservatively lead to the creation of between 500,000 and 1.6 million jobs, which in turn could give a boost to the US economy of between $70 billion and $224 billion a year. A more optimistic estimate would result in 889,000 jobs and a boost to the economy of around $140 billion per year. Vivek Wadhwa, a big proponent of this bill, estimates an even bigger boost if half of these companies are engineering and technology companies. Many of these entrepreneurs, according to Wadhwa, will go on to build new companies based on their success, and could also develop breakthrough technologies and some of them could also be the next Google or Apple.

So if this is a no-brainer, why is Congress not passing the Startup Visa Act 3.0? The truth is that no standalone immigration bill will pass unless it is tied to a broader Comprehensive Immigration Reform bill. Indeed, there is an interesting debate between Wadhwa and Congressman Luis V. Gutierrez on this issue. Guiterrez, although he supports a Startup Visa, has openly admitted that he will not allow it to pass unless Congress is willing to reform the entire immigration system.  Wadhwa feels this is “political gamesmanship” on the part of Guiterrez, and that the Startup Visa can be passed first in order to give the American economy a big boot and this would lead to increased public acceptance for broader immigration reform. Guiterrez, on the other hand, feels that once he allows this to happen, it will be more difficult to pass comprehensive immigration reform.

The disagreement between Gutierrez and Wadhwa may be a false polarity. A nation needs both social justice and good economics; indeed, social justice is the best economics. A good example of the synergy between social justice and economics is Sergey Brin, who is the co-founder of Google. He came to the US with his parents at the age of six because they faced anti-Semitism in their native Russia. Although Brin graduated from Stanford in computer science, he did not come to the US on an H-1B visa or benefitted under any employment or investor visa category in our immigration system. His parents were able to come into the US based on an immigration program that was designed to protect foreign nationals from intolerance in their native countries. Still, Brin after coming to the US as a youngster was able to go on to found Google, considered one of America’s best and most innovative companies today.

Both Wadhwa and Guiterrez have a point. However powerful the stimulus flowing from the Start Up visa, enactment of Comprehensive Immigration Reform along with the Startup Visa would be infinitely more potent. Reforming a broken system, which includes legalizing the 10 million plus undocumented immigrants in the US, as well as providing quicker and more sensible pathways to legal status, could unleash even greater wealth. Immigrants of all stripes are essentially very entrepreneurial. An undocumented person who is provided legal status can also start a business and this individual need not be a STEM (Science, Technology, Engineering or Math) graduate. Even a non-technology company can create jobs such as a restaurant or grocery chain. Immigration should not be viewed as a zero sum game, and giving opportunities to foreign nationals in the US can result in more American jobs. Under our broken system, it is virtually impossible for an entrepreneur who wishes to start a North Indian cuisine restaurant to bring in a foreign national tandoori chef. A reformed immigration system should hopefully give this entrepreneur access to such a chef from India. A restaurant’s success is possible because of its chef, and when that great tandoori chef can be quickly hired from India, people will start coming to the restaurant resulting in the hiring of restaurant managers and waiters locally in the US. This restaurant’s success can then be replicated, and the entrepreneur can develop a branded chain of tandoori restaurants all over the US, resulting in many more jobs locally.

According to another report sponsored by Cato Institute – The Economic Benefits Of Comprehensive Immigration Reform by Raul Hinjosa-Ojeda, the legalization of 11 million immigrants would be equivalent to more than $1.5 trillion added to GDP over 10 years. The study considered the economic impact under three scenarios: a legalization program that would ultimately result in a pathway to citizenship, a temporary worker program with no option for permanent resident status and the deportation of undocumented immigrants. Hinjosa-Ojeda concludes that the legalization of undocumented immigrants would provide the most economic benefits to the US. On the other hand, removing undocumented immigrants would be most expensive, costing $2.6 trillion to the GDP over a 10 year period.

The debate between Wadhwa and Gutierrez can be put in a larger perspective. If you believe, as Wadhwa does, that the purpose of immigration is to create wealth, unleash creativity and foster productivity, then the focus should be on entrepreneurs and highly skilled professionals. This explains his approach. If, however, you are mainly concerned with social justice, then you argue for a more comprehensive approach which is what Gutierrez does. It comes down to what you think is most important and what you think has true moral legitimacy. For those who use immigration to bring about social justice, it is family not employment immigration that is morally legitimate. The focus is on using immigration to help the individual immigrant, reunite families, to fight intolerance, poverty and injustice. It is not to make American employers more competitive, and there’s also an impulse to protect US workers.  Wadhwa, on the other hand, sees an ethical value and legitimacy in work itself, in work as a creative expression of individual talent. He looks for new avenues especially in STEM fields to unleash creative potential within the culture and context of a capitalist economy.

The economic boom that an enlightened immigration policy would ignite is generational in its dimensions. The immediate benefit from the entrepreneurial energy of the immigrant generation would be transformed and expanded by the diversified talents of succeeding generations. The Tandoori cook of one generation is often followed by the cutting-edge geophysicist of the next. Precisely as the American economy itself is inherently dynamic, the role that immigrants play in it also constantly evolves. For this reason, the sharp contrast provided by Gutierrez and Wadhwa that seem so vivid now will, over time, fade into a more nuanced yet no less compelling portrait.  Gutierrez realizes that an enlightened immigration policy can only exist in a compassionate society where social mobility is a lubricant of national cohesiveness. Wadhwa appreciates that immigration is an asset to be maximized not a problem to be controlled. Like all transformational moments in American history, this is pre-eminently a time to try something new.

A month before signing the Emancipation Proclamation, Abraham Lincoln spoke to our issue in our time:

The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew. We must disenthrall ourselves, and then we shall save our country. 

Halt America’s Decline by Welcoming Skilled and Entrepreneurial Immigrants

In recent times, there has been a confluence of diverse events, if stitched together, make immigration reform a virtual no brainer even if we have yet to come out of the economic doldrums.   Indeed, immigration reform in favor of skilled immigration, even if it is piecemeal and not comprehensive, can stimulate our economy in unimaginable ways.

First, the Census Bureau has officially indicated that white births are no longer a majority in the US. Non-Hispanic whites accounted for 49.6 percent of all births in the 12-month period ending last July. This is not something to be alarmed about; rather it is cause for celebration. The population in the US is now multi-ethnic and represents the diverse nations of the world. In our hyper-connected world, Americans who can adapt and interact with others across national boundaries can gain more benefit, bringing about further innovation, ideas and the understanding of other cultures. Of course, critics of increased immigration will bemoan this fact and blame it on the 1965 Immigration Act, which abolished the national origin quota system and opened up immigration to people from all countries. But such fear is driven more by xenophobia than anything else.   It is the 1965 Immigration Act, which has brought diversity into the US. Those who have come to the US regardless of their country of origin have clearly contributed to the country in immeasurable ways. They have also forged closer ties between the US and their country of origin. The symbiotic relationship between Silicon Valley and Bangalore is one such example.  While it has become a national obsession to comment about America’s declining superpower status, one way for it to continue to remain a superpower and be respected as well as admired is to foster a multi-ethnic population that represents all the countries of the world. Even the rest of the world will sit more comfortably with a multi-ethnic superpower than a superpower that favors one group over all others.

Second, we are on the cusp of what The Economist has called The Third Industrial Revolution. New advances in manufacturing will soon make the factory as we now know it obsolete. As manufacturing is going digital, especially with the advent of 3D Printer, we will no longer need long lines of factory workers. A product can be designed on a computer and “printed” on a 3D printer, which will have the potential of rendering supply chains obsolete. Also, the factory of the future will run on its own devoid of workers in oily overalls, and as The Economist presciently notes, “[m]ost jobs will not be on the factory floor but in the offices nearby, which will be full of designers, engineers, IT specialists, logistics experts, marketing staff and other professionals. The manufacturing jobs of the future will require more skills. Many dull, repetitive tasks will become obsolete: you no longer need riveters when a product has no rivets.” The US needs to attract these new skilled professionals who will run the factories of the future.

Third, a new report, Not Coming to America: Why The US Is Falling Behind In the Global Race for Talent, reveals how foreign countries are reshaping their immigration policies to boost their economy while the US remains mired in an obsolete and broken immigration system. The US is thus losing talent to other countries. The report, which has been issued by Partnership For A New American Economy, headed by NYC Mayor Michael Bloomberg, identifies three major risks if it does not reform its immigration laws: a shortage of workers in innovation industries, a shortage of young workers and slow rates of business startup and job creation. US companies are hungry for jobs in science, technology, engineering and math (STEM), but these jobs are hard to find among native US workers. The report also explores the more business friendly immigration policies of Australia, Canada, Chile, China, Germany, Ireland, Israel, Singapore and the United Kingdom in attracting talented immigrants and entrepreneurs. For instance, New Zealand has a rather broad welcoming policy for foreign entrepreneurs. There is no specific job creation or minimum capital requirement, and after two years of self employment “beneficial to New Zealand,” the entrepreneur can apply for permanent residency.

This fortuitous alignment of the stars bodes well for reform of our immigration system, which is not just creaky and obsolete but completely broken. The US has no special visa category that would encourage entrepreneurs to start innovative businesses and become permanent residents. The H-1B visa, which US companies rely on to bring in foreign skilled employees, especially in the STEM fields, is hobbled by a 65,000 annual cap, and the numbers under the FY2013 cap are expected to be reached many months ahead of the start of the next fiscal year, October 1, 2012! Even the employment-based immigration system has broken down even though there is no national origin quota. If you are born in China and India, and have been sponsored by an employer through the onerous labor certification process, it can take several years, even decades, before you get permanent residence.

One wonders how the US has an immigration system dominated by quotas, which also micromanages the employer and foreign national worker, when it espouses free market capitalism. Such a system is more reminiscent of one that could have been designed by communist apparatchiks in the former Soviet Union.  In order to unleash economic growth, it is essential to allow foreign nationals easy access into the US so that they can implement their ideas, create companies and employ more Americans. In a recessionary economy, we need more entrepreneurs to set up businesses and create jobs, and immigrants may have a greater propensity to engage in entrepreneurial activities. There may be a ray of hope. In a rare bipartisan move, freshman senators Marco Rubio (R-FA), Chris Coons (D-Del.), Jerry Moran (R-Kan,) and Mark Warner (D-Va) have introduced Startup Act 2.0, which includes immigration-related provisions to attain the following objectives:

  • Creates a new STEM visa so that U.S.-educated foreign students, who graduate with a master’s or Ph.D. in science, technology, engineering or mathematics, can receive a green card and stay in this country where their talent and ideas can fuel growth and create American jobs;
  • Creates an Entrepreneur’s Visa for legal immigrants, so they can remain in the United States, launch businesses and create jobs;
  • Eliminates the per-country caps for employment-based immigrant visas – which hinder U.S. employers from recruiting the top-tier talent they need to grow.

While the chances of this bill passing in the current partisan political climate, prior the 2012 Presidential elections remain remote, one can still be surprised. After all, immigration ought to cut across partisan lines, and our elected representatives need to enact sound immigration proposals for the good of the country and the world. Although it would be ideal to comprehensively reform our immigration system, which would include providing a path to legalization for the millions of undocumented immigrants, small but meaningful initiatives such as Startup 2.0 could still be passed in the mean time. In the event that Startup Act 2.0 goes nowhere, there is still scope within our existing system to encourage skilled and entrepreneur immigration if only our immigration bureaucrats interpret existing immigration visa categories generously rather than in a mean spirited and niggardly manner. For instance, the intra-company transferee L-1A visa ought to remain a viable option for an entrepreneur to establish a branch or subsidiary of a foreign business in the US. Yet, in recent times, L-1A petitions get turned down wholesale on the ground that a small startup entity can never support a person in an executive or managerial capacity. This is nonsense and bureaucratic gobbledygook, as Congress never intended that small businesses could not support entrepreneur executives or managers. Sad to say, we happen to be in double whammy mode of no good legislation, along with bureaucrats reading out existing visa categories out of the law. The writing is on the wall, and unless we want to perversely see America spiral into decline, it is time to act fast and enact sound immigration reform.

How Fair is the Fairness For High-Skilled Immigrants Act?

H.R. 3012, the Fairness for High Skilled Immigrants Act, was passed in the House on November 29, 2011 by a landslide 389-15 vote. Introduced by Rep. Chaffetz (R-UT), it eliminates the employment-based per country cap entirely by 2015 and raises the family-sponsored per-country cap from 7% to 15%. If H.R. 3012 does become law, it will significantly decrease the wait times for certain countries in the employment-based preferences, especially India and China. Even wait times in the family-based preferences will get reduced.

H.R. 3012 only redistributes the allocation of visas, it does not increase the visas that are fixed in number each year. As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only 300,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the Employment-based second preference (EB-2), those born in India and China have to wait for over 5 years to obtain green cards while all other nationalities do not have any wait times. The situation is even more dire in the Employment-based third preference for India (EB-3). Under the per country limit for India in the EB-3, only 2,800 visas can be allocated each year while an estimated 210,000 Indians, along with their dependants, are eligible for green cards. As a result, according to a report of the National Foundation For American Policy, the waiting time for a green card for an Indian under the EB-3 has been estimated to be 70 years, while it may be over 5 years for others.

As a result of such unmanageable waiting times, skilled foreign nationals in the pipeline for a green card, especially from India and China, have no incentive to stay in the US even though they may be invaluable to their employers who have sponsored them by demonstrating that there were no US workers available for the position. Many of these skilled immigrants have graduated with degrees in science, technology, engineering and math (STEM), vital to US growth and innovation. Such skilled workers are generally on H-1B visas, but many are on other nonimmigrant visas such as the L visa too. Even though they are able to extend their H-1B visas beyond the six year limit while waiting for the green card under provisions in the American Competitiveness in the 21st Century Act (AC21) (and many are already past 10 years on the H-1B visa), they are generally bound to the same employer during the green card process and their spouses cannot work. If their children turn over 21, they lose the ability to remain on the H-4 dependent status and most likely will also be unable to derivatively get the green card along with the parent.

The passage of H.R. 3012 has been met with jubilation by Indians and Chinese, but those from the rest of the world may not be so happy. While Indians and Chinese may still need to wait, the waiting times will get more tolerable, but others who did not have to wait in the EB-2 will now need to wait. While it is hard to predict, there may eventually be waiting times of 1-2 years for all countries in the EB-2. While everyone in the EB-3 is subject to unreasonable waiting times, upon the elimination of the per country limits, Indians may still need to wait but it will not be for 70 years. Instead, it may be 10-12 years for all EB-3 nationals, according to the NFAP report. Those who have priority dates prior to November 2005 in the EB-3, according to the NFAP report, will need to wait only 1 to 2 more years instead of an additional torturous 11-18 years. While waiting times for Indian and Chinese may likely lessen, waiting times for all others may go up in both the EB-2 and the EB-3.

H.R. 3012 is thus not a perfect bill. It also has to be passed by the Senate before it becomes law, and there is an identical version introduced in the Senate. At present, Senator Grassley (R-1A), who has been a foe to skilled immigrant from India, including H-1Bs used by Indian IT companies, has placed a hold on legislation in the Senate. Senate procedures allow any member of the Senate to place such a hold on legislation, and it is uncertain whether Grassley will release his hold in the near future, although he is being persuaded to do so by colleagues and advocates. What is so significant about H.R 3012 is that it received bipartisan support and that too by a landslide, especially in a time when such bipartisan support on other measures is rare or non-existent. The easy passage of H.R. 3012 also shows that there is concern about the unfairness and imbalance in the system towards certain countries, especially India and China. Indeed, although the country limits were originally enacted for all countries, it has resulted in invidious discrimination within the immigration system for Indians and Chinese.

Things may work out better than expected if H.R. 3012 became law, though, as we have lived without per country limits in recent times. Prior to Jan 1, 2005, the EB numbers were always current because AC 21, enacted in 2000, recaptured 130,000 numbers from 1998 and 1999, and the per country limits were postponed under a formula until the demand in the EB outstripped the supply. The lack of per country limits helped, but we also had the additional unused numbers. However, at that time, we also had a surge under the 245(i) program, which we do not have today. The notes in the January 1, 2005 Visa Bulletin, when there was retrogression in the EB-3 for the first time after AC21, explains it all.

In conclusion, even if H.R. 3012 imposes waiting times on others who were hitherto not affected in an unfair system while decreasing the wait times for Indians and Chinese, it is consistent with principles of fairness.

The words of Justice Jackson ring true with respect to H.R. 3012 too:

“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.”Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112—113 (1949) (concurring opinion).

Of course, H.R. 3012 ought to be viewed as a first baby step towards more comprehensive immigration reform. Even if it does become law, and skilled immigrants continue to wait, who may not only be Indians or Chinese, Congress will realize that the ultimate solution is to increase the visa numbers, rather than to maintain fossilized quotas that never change and are oblivious to economic and global realities. If there is no consensus for an overall increase in the 140,000 visas that are allocated each year to EB immigrants, Congress can exempt certain people from the numbers such as graduates with STEM degrees, or better still, dependent family members. Such carve outs too could restore further balance and integrity to the US immigration system.


By Cyrus D. Mehta

I was pleased to see the announcement below. Immigration and Customs Enforcement, (ICE) of all agencies, expands immigration benefits to students who have graduated in science, technology, engineering and math degree programs (STEM) fields. ICE, which has been deporting non-citizens in high numbers in recent times, ironically acknowledges that this is a “continued commitment to fixing our broken immigration system and expanding access to the nation’s pool of talented high skilled graduates in science and technology fields.”

The 17 month extension of Optional Practical Training for STEM graduates is a good example of how the Administration can fix problems within our broken immigration system in the face of Congressional inaction. The 17-month extension was in response to the crisis caused by the H-1B cap in previous years. Even if presently, under the FY2012 H-1B cap, there are still plenty of H-1B visas, the quota is likely to get filled prior to the end of FY 2012. The expansion of STEM fields will benefit both employers and foreign students when they are next confronted with the filling of the H-1B cap. The 17-month STEM OPT extension rule was promulgated in the absence of any Congressional action. The rule also withstood a court challenge by the Programmers Guild in the Third Circuit on the ground that Congress acquiesced by never objecting to the concept of practical training whenever it previously legislated on immigration. See Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009).

In The Tyranny of Priority Dates by Gary Endelman and Cyrus D. Mehta, we have forcefully argued that the Administration has the power to creatively fix our immigration system administratively, and used the STEM OPT extension as an example.
What is intriguing about this ICE announcement that it comes closely on the heels of President Obama’s speech on immigration in El Paso on May 10. While many think that Obama’s recent meetings on immigration and his El Paso speech do not amount to much, the fact that his administration expanded STEM fields after the speech reveals that he may still have a nuanced plan to change the game on immigration. Expanding STEM fields is a baby step, and he can do a lot more administratively such as halting deportations for DREAM students. The President can justify such administrative fixes as our immigration system no longer works and is not what Congress intended when it enacted the preference system in 1965, which was expanded in 1990., but is unable to cope with present day realities. By taking bold administrative steps now, he can force Congress to bless them later either through acquiescence (by taking no action) or by affirming through legislation.

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ICE announces expanded list of science, technology, engineering, and math degree programs

Qualifies eligible graduates to extend their post-graduate training

WASHINGTON – U.S. Immigration and Customs Enforcement (ICE) today published an expanded list of science, technology, engineering, and math (STEM) degree programs that qualify eligible graduates on student visas for an Optional Practical Training (OPT) extension-an important step forward in the Obama administration’s continued commitment to fixing our broken immigration system and expanding access to the nation’s pool of talented high skilled graduates in the science and technology fields.

The announcement follows President Obama’s recent remarks in El Paso, Texas, where he reiterated his strong support for new policies that embrace talented students from other countries, who enrich the nation by working in science and technology jobs and fueling innovation in their chosen fields here in the United States, as a part of comprehensive reform.

By expanding the list of STEM degrees to include such fields as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design, Mathematics and Computer Science, the Obama administration is helping to address shortages in certain high tech sectors of talented scientists and technology experts-permitting highly skilled foreign graduates who wish to work in their field of study upon graduation and extend their post-graduate training in the United States.

Under the OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the U.S. and receive training through work experience for up to 12 months. Students who graduate with one of the newly-expanded STEM degrees can remain for an additional 17 months on an OPT STEM extension.