Tag Archive for: Optional Practical Training

Cyrus Mehta

A Tale of Two Cases – Washtech v. DHS and Texas v. USA: To What Extent can the Executive Branch Allow Noncitizens to Remain and Work in the US

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By Cyrus D. Mehta and Kaitlyn Box*

To what extent can the Executive Branch allow noncitizens to remain and work in the US when there is no explicit provision in the Immigration and Nationality Act (INA) covering these categories of noncitizens? Two courts of appeals have ruled differently in recent decisions. One court found authority while the other court did not. The D.C. Circuit addressed the question of F-1 students and whether they could remain in the U.S. after graduation for practical training. Citing DHS’ authority under INA § 214(a)(1) and the long history of post-graduation practical training, the court upheld OPT. The Fifth Circuit confronted a different issue – that of young people who came to the U.S. and whether they could remain in the country through deferred action. Finding that DACA exceeds DHS’ inherent authority to exercise prosecutorial discretion, the court struck down the program, though deferred action is a well-established practice like OPT.

On October 4, 2022, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”). The case involved a challenge to the STEM Optional Practical Training (OPT) rules by the Washington Alliance of Technology Workers (Washtech), a union representing tech workers. DHS allows eligible students in STEM fields an additional 24 month OPT extension beyond the usual 12 month OPT period. Washtech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Washtech read INA § 101(a)(15)(F)(i) as authorizing DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study, as the provision does not specifically mention post-graduation practical training. The court affirmed a district court judgment that upheld DHS’ current OPT rules. The court reasoned that the STEM OPT extension is a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The court further noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.” Judge Pillard, who authored the opinion, noted that the concept of post-coursework practical training for foreign students predates the Immigration and Nationality Act of 1952, pointing to a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has been authorized even prior to the enactment of the INA in 1952.  In previous blogs, we have discussed Congressional authority for OPT at length, see here, here, here, and here.

In Texas v. U.S., decided on October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful, upholding an earlier decision by Judge Andrew Hanen of the United States District Court for the Southern District of Texas. Although the practice of deferred action, of which the DACA program is a form, has also existed for decades, the Fifth Circuit’s decision was much less favorable than that of the D.C. Circuit. The court reasoned that the DACA program exceeds DHS’ inherent authority to exercise prosecutorial discretion, as “declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change”. Further, the court found that there is no “clear congressional authorization” for DACA. In light of a recent regulation promulgated by the Biden administration to “preserve and fortify” DACA, the case was remanded to the U.S. District Court for the Southern District of Texas. Although DACA lives for now, it remains on the respirator as both the district court and the Fifth Circuit have consistently held that DACA is not authorized by the INA, and notwithstanding the new regulation, may still be held to be unlawful.

Though the courts in these cases arrived at few different outcomes, the two decisions share at least one commonality – both made reference to the “major question” doctrine recently introduced in West Virginia v. EPA, 142 S. Ct. 2587 (2022). There the Supreme Court held that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”.  Such extraordinary cases where the “major questions” doctrine is invoked have vast economic and political significance.  Interestingly, the dissent in Washtech indicated that the issue of whether DHS’ 2016 OPT Rule exceeds its statutory authority is a “major question”. Finding that the major questions doctrine applied, the dissent in Washtech directed the district court upon remand to examine whether DHS had the authority to issue OPT regulations under this principle.

In footnote 206, the court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement DACA. The court also held that DACA did not pass the first step of the Chevron test, which asks “whether Congress has ‘directly addressed the precise question at issue.’” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The court in Washtech analyzed the OPT rule under the lens of Chevron also, but gave DHS’ interpretation of INA § 214(a)(1) deference.

If the major questions doctrine is implemented in this way, it could result in fewer agency actions receiving Chevron deference. Chevron gives the Biden administration the ability to interpret the INA by implementing OPT and DACA programs, so it is hoped that the major questions doctrine does not impede the application of this longstanding precedent. Moreover, immigration decisions unlike environmental cases ought not to be cases involving vast economic and political significance.  The majority decision in Washtech involved challenges to the INA provisions that provide the authority for noncitizens to remain in the U.S. The court gave due deference under Chevron to the executive’s interpretation of INA § 214(a)(1) and upheld OPT. The majority did not reference the “major questions” doctrine in Virginia v. EPA.  The Fifth Circuit, on the other hand, held that  DHS cannot rely on INA § 103(a)(3) as a basis for implementing DACA, and cited Virginia v. EPA. This provision states that the DHS Secretary “shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of the Act.” This provision is comparable to INA § 214(a)(1), which the First Circuit held provided the basis for F-1 OPT. INA § 214(a)(1) provides that “[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe…….”

Although the Washtech case dealt with students, the D.C. Circuit’s decision can serve as a template for the Supreme Court to uphold the authority for other categories of noncitizens to remain in the U.S., including DACA recipients. The same deference that the D.C. Circuit afforded to the executive’s authorization of OPT ought to also be given to the government’s interpretation of INA § 103(a)(3) and 6 USC § 202(5) so that the DACA program is upheld.

Another interesting issue discussed in both cases is whether the Executive Branch can issue work authorization to noncitizens. The court in Washtech upheld the authority of the executive to grant employment authorization documents (EADs) under INA § 274(a)(h)(3), which has long provided authority for the Executive Branch to provide employment authorization to broad categories of noncitizens. The executive’s authority to grant EADs under this provision had been soundly rejected by the Fifth Circuit in the earlier DAPA decision and Judge Hanen’s lower court decision in Texas v. U.S. In footnote 37, Hanen’s decision makes reference to INA §274a(h)(3) as a definitional miscellaneous provision, which cannot provide the basis for DACA and the grant of EADs, while the First Circuit relied on the same provision as a statutory basis for OPT EAD.

Charles Dickens opened his A Tale of Two Cities with the following famous line: “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way – in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.” Like London and Paris in Dickens’ novel, Washtech and Texas are comparable in some respects and very different in others. Though Texas may represent the worst of times and the age of foolishness, Washtech ushers in an age of wisdom and the best of times for foreign students hoping to gain practical training in the U.S.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Save Optional Practical Training for Foreign Students

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DHS promulgated the F-1 STEM optional practical training (OPT) benefit, with the publication of the “24-month STEM OPT Rule” that became effective on May 10, 2016. See 81 FR 13039. This rule has been the subject of contentious litigation.  The Washington Alliance of Technology Workers (WashTech) filed suit against both the 24-month STEM OPT rule and the standard 12-month post-completion OPT rule in the U.S. District Court for the District of Columbia. A summary of the progress of the litigation is available on this page on NAFSA’s website.

On July 1, 2019, the federal district court in DC in Washington Alliance of Technology Workers v. DHS issued an important decision holding that the 12-month Optional Practical Training program regulation finalized in 1992 had been reopened by the 24-month STEM OPT Rule, which raises the issue of whether DHS has authority to administer a practical training program after an F-1 student completes the underlying degree. The court found that the 24-month STEM OPT rulemaking also had the legal effect of reopening the legacy INS 12-month post-completion OPT regulation that had been finalized in 1992. This means that the court no longer considers a challenge to DHS’s statutory authority to implement standard post-completion OPT to be outside the statute of limitations, and that the WashTech plaintiffs can challenge DHS’s underlying statutory authority to establish not only STEM OPT but standard post-completion OPT as well. There will be briefing and an ultimate court decision on whether DHS has authority to administer both the 12-month OPT and STEM OPT extension programs.

In the same July 1, 2019 decision, the federal district court further held  that organizations seeking to be intervenors had standing to do so, despite opposition by both plaintiffs WashTech and defendant DHS. This means that the Information Technology Industry Council (ITI), National Association of Manufacturers (NAM), and US Chamber of Commerce will be carrying the important load of making the key arguments defending DHS’s authority, which is made most critical because it is not clear that DHS under the Trump administration, presently beholden to Buy American Hire American,  will zealously argue and defend its own authority.

If WashTech prevails, and OPT is eliminated, the result would be catastrophic.  After foreign students graduate from a US school, they can apply for one year of OPT. Those who graduate in STEM fields can pursue an additional 24 months of OPT.  The lawsuit claims that DHS has no authority under the Immigration and Nationality Act to issue employment authorization to foreign students. The ability to pursue practical training following graduation is one of the main attractions for foreign students seeking to study in the US.

Although the DHS formally opposes WashTech, there are forces in the administration that would probably want the plaintiffs to prevail. Hence, the role of the intervenor organizations is crucial to ensure that OPT remains available for foreign students. Otherwise, foreign students would have to immediately leave the US upon graduation. A victory for the plaintiffs here would virtually eliminate the ability for foreign graduates to easily seek employment, which they can now do during the OPT period, and then apply for H-1B visas and other employment-based immigration options.

The provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is admittedly ambiguous. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after they have completed the educational program. For over 50 years, the government has allowed students to engage in practical training after the completion of their studies, which Congress has never altered.  Thus, a court should be more inclined to give deference to the Administration’s interpretation of INA 101(a)(15)(F)(i).  DHS is entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, 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. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute.

The court in the WashTech litigation ought to uphold the ability of DHS to grant OPT to foreign students under Step 2 of the Chevron analysis. The DHS’s interpretation of INA 101(a)(15)(F)(i) should be given deference. Even if there is a judicial decision interpreting 101(a)(15)(F)(i) differently, the DHS’s interpretation ought to prevail under Brand X. In addition to Chevron deference, there is yet another doctrine that can uphold OPT. In Lorillard v. Pons, 434 U.S. 575, 580 (1978), the Supreme Court held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has existed even prior to 1952, and since the enactment of the INA in 1952, and during the overhaul in 1990, Congress and has not enacted any provision that would eliminate student practical training. There are 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.”

There are many good arguments that can be made to preserve OPT in the WashTech litigation. In addition to the legal arguments addressed above, imagine the damage that would befall US schools if they were not able to attract foreign students. US schools would suffer both financially and in terms of reputation to academic institutions in other countries. Those who come to the US to study also understand America more deeply, and would be able to promote American values when they return and assume important positions in their own countries. Hence, every effort should be made to uphold OPT that has been an integral part of the US immigration system for over 50 years. One effective way to do this is for employers, business organizations, foreign student associations, think tanks, bar associations and other interested organizations to file amicus briefs in the court case. Outside the courtroom, there is also need to convince the American people about the benefits that foreign students bring to the US, and that the elimination of OPT will encourage foreign students to pursue their newly acquired skills in other countries that will compete against America. The OPT program ought not to be viewed as a source for cheap labor, as some critics contend, as the program is temporary and allows a foreign student educated in the US to gain meaningful experience, and preventing that would harm the US economy. Another study states that the OPT allows employers to hire STEM graduates who are in short supply, and provides a bridge for students with badly needed skills to ultimately secure a chance under the H-1B visa lottery.    In the unlikely event that the courts agree with the plaintiffs, Congress would need to step in to enact provisions in the INA that uphold the OPT programs for foreign students as presently enshrined in the regulations. There is too much at stake for America to allow OPT to die just like that.

Cora-Ann Pestaina

USCIS Denying Change Of Status For F-1 Students With Over 12 Months Of Curricular Practical Training

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An F-1 student who has received more than 12 months of Curricular Practical Training (CPT) may be found by United States Citizenship & Immigration Services (USCIS), to have violated F-1 status and thus ineligible to be granted a change of status in the US. This is yet another disturbing trend that we first mentioned in an earlier blog where we indicated that USCIS had started challenging F-1 maintenance of status through CPT by issuing Requests for Evidence on pending H-1B petitions requesting a change of status in the US.

Essentially, 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. Under 8 CFR § 214.2(f)(10)(i), however,  “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” Note that the inclusion of “academic training” appears to be an obvious typographical error, and it ought to have been “practical training” when the rule was last promulgated on 12/11/2002. [revised 10/25/2018] This could clearly be interpreted to mean that a student can receive more than one year of CPT and, if so granted, this student would simply become ineligible to receive any practical training after graduation. This appears to have been the prevailing interpretation by all government agencies and CPT has continued to be routinely granted by Designated Student Officers (DSO) through the Student and Exchange Visitor Information System (SEVIS) that is administered by Immigration and Customs Enforcement (ICE). Enter the new USCIS in the era of Trump. Suddenly, USCIS has begun to interpret the regulations to mean that a student may only be granted a total of 12 months of any type of practical training. This, despite the fact that ICE, its sister agency, authorized more than 12 months of CPT. USCIS is choosing to completely disregard the unmistakable indication in 8 CFR § 214.2(f)(10)(i) that students may legitimately receive “one year or more” of CPT.

It is painfully obvious that the intent behind the regulation was only to prohibit students who had received more than 12 months of CPT from then also receiving Optional Practical Training (OPT) after graduation. The intent was not to penalize a student for receiving more than 12 months of CPT. First, the student could not receive more than 12 months of CPT if the CPT weren’t actually granted by a school DSO and entered into SEVIS. Accordingly, if there were any violation, it should be on the part of the school and not the student. The student should not be punished for failure to maintain status when that student followed all the appropriate steps to maintain status. Second, why is USCIS making a determination that such a student failed to maintain status when ICE is the agency that administers the Student and Exchange Visitor Program (SEVP)? If ICE has not determined that a student failed to maintain status and if SEVIS indicates that the student is currently in status, then USCIS ought to acknowledge that. If there had truly been a violation of status then SEVIS would have so indicated.  And third, the regulations at 8 CFR § 214.2(f)(10) are simply outdated. In March 2016, the Department of Homeland Security (DHS) amended its F-1 student visa regulations on OPT for certain students with degrees in science, technology, engineering, or mathematics (STEM) from SEVP-certified and accredited U.S. colleges and universities. Specifically, the final rule allows such F-1 STEM students who have elected to pursue 12 months of OPT in the U.S. to extend the OPT period by 24 months (STEM OPT extension). See 8 CFR § 214.2(f)(10)(ii)(C). Perhaps DHS could have also amended the regulations and removed all outdated sentences. Unfortunately, USCIS is now seizing upon such a sentence and using it to launch another attack on F-1 students.

In the case of the H-1B petition, USCIS can approve the underlying H-1B but deny the request for a change of status. In order to obtain H-1B status, the student would need to leave the US and apply for an H-1B visa at a US Consulate or Embassy abroad. At this point in time, upon receipt of a USCIS denial of a request for a change of status on an H-1B petition, the F-1 student would only have accrued unlawful presence from August 9, 2018 under USCIS’ unlawful presence policy for F, J and M nonimmigrants. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1). Very few students will trigger the permanent bar as they generally do not try to reenter the US without being admitted or paroled.   Students in receipt of a denial of a change of status can take advantage of the current grace period until February 5, 2019. However, if the student departs the US later than February 5, 2019, he or she will be barred from re-entering for 3 or 10 years.

So what can be done? More so than ever before, F-1 students really need to be proactive about their maintenance of status and need to seek legal advice in the event that any rules are unclear or even just to ensure that they are on the right track. It will not be enough to rely on the DSO’s advice as the student will be the one punished in the end. But the bottom line is that this USCIS policy must be challenged in federal court! It is simply unconscionable to inflict the 3 and 10 year bars on a student who has diligently sought to maintain status in the US.

Cyrus Mehta

USCIS Finalizes Unlawful Presence Policy Putting F, J And M Nonimmigrants In Great Jeopardy

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The USCIS finalized its unlawful presence policy for F, J and M nonimmigrants on August 9, 2018. The final policy makes no significant changes from the draft policy of May 10, 2018. My earlier blog noted the flaws in the draft policy, which persist in the final policy. The final policy incorrectly breaks down the distinction between violating status and being unlawfully present in the US. As of August 9, 2018, F, J and M nonimmigrants who have failed to maintain nonimmigrant status will start accruing unlawful presence.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1).

Prior to August 9, 2018,  foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

This will no longer be the case. Under the new policy effective August 9, 2018, any status violation will start the accrual of unlawful presence. The nonimmigrant will not be provided with any formal notice of a status violation, and any violation from the past that has been discovered would have already started the accrual of unlawful presence. According to the policy memo, the USCIS officer should consider information relating to the alien’s immigration history, including but not limited to:

  • Information contained in the systems available to USCIS;
  • Information contained in the alien’s record; and
  • Information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny, if any.

The final policy purports to make one concession from the draft policy, which is that if a nonimmigrant in F, J or M nonimmigrant classification makes a timely filing for reinstatement of status, then unlawful presence will not accrue during the pendency of this request. In the case of students in F-1 status, a reinstatement application will be considered timely filed if the applicant has not been out of status for more than 5 months at the time of filing for a request for reinstatement under 8 CFR § 214.2(f)(16).  If the reinstatement request is approved, then the period of time an F-1 nonimmigrant was out of status prior to filing the application, along with the period of time during the pendency of the request, will not be counted as unlawful presence. If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. Whether or not the application for reinstatement is timely filed, USCIS said, an F, J, or M nonimmigrant “whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.”

USCIS also noted that the Department of State (DOS) administers the J-1 exchange visitor program, to include reinstatement requests. If DOS approves the reinstatement application of a J nonimmigrant, “the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated,” USCIS said.

Unfortunately, most students may never know that they fell out of status until it is too late and they may never have an opportunity to file for reinstatement. Students will also likely be found to have violated status if they pursued practical training that is perceived as not being consistent with the regulations.

Esteemed colleague and immigration law expert Stephen Yale-Loehr has compiled a list of 50 examples how an international student might inadvertently or unknowingly fall out of status and start to accrue unlawful presence under the new guidance. Many of these examples arise from mistakes by the school.  For instance, a designated school officer (DSO) may mistakenly complete a record, which will indicate to a USCIS officer that the student has remained in the United States beyond the end date of the program, and may have also worked on campus in violation of F-1 status. Status violations can also result from inadvertent miscommunications between school officials. An undergraduate student receives permission from an academic advisor (but not the DSO) to drop a course. The student is now registered for 11 rather than 12 semester credit hours. Later, the USCIS deems her to be in violation of status and accruing unlawful presence.

The USCIS has already begun to lay traps in order to nab students who may have unwittingly violated status. Recent RFEs issued after the filing of a change of status request from F-1 to H-1B require a student to meticulously demonstrate that he or she maintained status during post-completion practical training, including proving that the student was not unemployed for more than the requisite amount of time. The student must also prove that the employment, including an unpaid internship, was related to the major field of study.  Here is one example inquiring whether a student maintained status during a routine period of optional practical training:

F-1 OPT: Students engaging in initial F-1 post-completion Optional Practical Training (OPT) may not accrue an aggregate of more than 90 days off unemployment during the initial post-completion OPT period. Students granted the 17-month OPT extension may not accrue an aggregate of more than 120 days of unemployment during the total OPT period including any initial OPT and the 17-month OPT extension. Students granted the 24-month OPT extension may not accrue an aggregate of more than 150 days of unemployment during the total OPT period including any initial OPT and the 24-month OPT extension. Further, students engaging in F-1 post-completion must engage in at least 20 hours or more per week of employment that is directly related to the student’s U.S. major of study. Lastly, unpaid internships may meet the OPT employment requirements if the internship is directly related to the student’s U.S. major of study and the internship complies with all labor laws. Please provide evidence that the beneficiary maintained the beneficiary’s F-1 status during post-completion OPT. Evidence may include but is not limited to the following:

-A list of all employers the beneficiary has worked for under post-completion OPT and the periods the beneficiary worked for those employers;

-Copies of all pay records/stubs for the beneficiary from the starting date of post-completion OPT to the present time; and

-Evidence that the beneficiary worked at least 20 hours or more per week in a position is directly related to the beneficiary’s U.S. major of study.

Similarly, maintaining status through Curricular Practical Training (CPT) is frequently challenged in RFEs by asking for evidence that the CPT was an integral part of the beneficiary’s degree program. The regulation at 8 CFR § 214.2(f)(1)(i) leaves undefined “curricular practical training program that is an integral part of an established curriculum” thus leaving it open for a subjective interpretation.  Also, where the CPT commenced immediately upon the student’s enrolment in the program, the USCIS questions whether immediate participation in CPT was required for the beneficiary’s studies.

A student can also be found to have violated status due to an ambiguity in the rules providing for the maximum amount of time in practical training. 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. 8 CFR § 214.2(f)(10)(i) further provides that “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” This could be interpreted to mean that a student can receive more than one year of CPT, and such CPT is routinely granted by DSOs through the SEVIS system that is administered by ICE. But USCIS is now interpreting this to mean that the total time that a student is entitled in any sort of practical training is 12 months even though ICE, its sister agency, authorized more than 12 months of CPT. USCIS is disregarding the suggestion in 8 CFR § 214.2(f)(10)(i) that a student may be entitled to more than 12 months of CPT.

Upon receiving such an RFE, it is important to submit evidence to overcome USCIS’s doubts. Still, it may be difficult to challenge USCIS’s interpretation that the regulation at 8 CFR § 214.2(f)(10) only authorizes a total of 12 months of practical training, even though 8 CFR § 214.2(f)(10)(i) appears to suggest that CPT can be granted in excess of 1 year. It may also be difficult to demonstrate to the USCIS’s satisfaction that the CPT was an integral part of an established curriculum. If the request for a change of status is not granted, the F-1 nonimmigrant would have started accruing unlawful presence as of August 9, 2018. In the event of the student departing later than February 5, 2020, he or she will be barred from entering the US for 3 years. After February 5, 2020, there will be no such grace period, and prior status violations that were in excess of 180 days will result in 3 year or 10 year bars to reentry upon the student departing the United States. The student may not be able to change or adjust status in the United States, and thus will be caught in a federally imposed Catch-22 situation.

The unlawful presence policy compounds the plight of the nonimmigrant who may also receive a Notice to Appear and be placed in removal proceedings under yet another USCIS policy designed to make life more difficult for law abiding nonimmigrants. Some are deciding to withdraw the request for change of status, upon receiving difficult to overcome RFEs, and leave the United States, prior to February 5, 2020, so that they can process their H-1B visas at a US consulate abroad. While such a strategy may allow the applicant to escape being issued a Notice to Appear, it could cause issues at the US consulate where a consul may still want the applicant to justify whether the CPT program was bona fide. On the other hand, if the applicant is placed in removal proceedings, and if voluntary departure is issued by an Immigration Judge prior to the accrual of unlawful presence of one year or more, then there is an escape hatch pursuant to INA § 212(a)(9)(B)(i)(I). The 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence (as there is explicit language to this effect in the provision). If the voluntary departure order is issued after 1 year of unlawful presence,  then the ten-year bar would trigger under INA § 212(a)(9)(B)(i)(II) would apply. There is no escape hatch to the 10 year bar as there is to the 3 year bar whilst in removal proceedings. Further ethical and strategic considerations regarding representing beneficiaries of denied requests in removal proceedings can be found in my blog here.

The final policy will not just cause havoc to nonimmigrants snared with technical or perceived violations of status, but schools will also face liability for errors by DSOs. Challenging the policy in federal court is indeed the need of the hour, and there is an urgent need for universities, hospitals and research institutions to come forward as plaintiffs! The 3 and 10 year bars, or the permanent bar under INA § 212(a)(9)C), are extremely draconian and should only be triggered when the nonimmigrant goes beyond a date certain expiration date. This is consistent with the statutory definition of unlawful presence under INA § 212(a)(9)(B)(ii), which provides:

“…an alien is deemed to be unlawfully present in the United States if the alien is present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

The new policy blurs the difference between being out of status and unlawfully present, and thus violates INA § 212(a)(9)(B)(ii). If the USCIS wanted to so radically change its prior interpretation of unlawful presence for F, J and M nonimmigrants, it ought to have promulgated a rule through a more formal notice and comment under the Administrative Procedure Act. Finally, the policy violates the due process rights of these nonimmigrants as it imposes draconian penalties, 3 and 10 year bars, for status violations for which they never received formal warning and notice. All these are ripe grounds, among many others, for a successful challenge to this flawed policy in federal court!

 

Cora-Ann Pestaina

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

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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!

Cora-Ann Pestaina

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

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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.

 

Cyrus Mehta

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

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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.