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Work program for recent foreign grads in legal limbo

For the past 5 months, thousands of recent foreign science, technology, engineering, and mathematics (STEM) graduates of U.S. universities who hold jobs in the United States under a program known as Optional Practical Training (OPT) have worried that their permission to remain in the country would expire on 12 February because of an August 2015 ruling from U.S. District Judge Ellen Segal Huvelle. On 23 January, however, Huvelle extended that rapidly approaching deadline to 10 May, granting these workers at least a temporary reprieve—but the situation remains far from resolved.

The OPT program permits foreign students and recent graduates to work in the United States under their existing F-1 student visas rather than requiring a work visa, such as the H-1B, which can be very difficult to obtain. Reporting may appear to suggest that Huvelle’s recent ruling assures that the regulations currently governing the program will remain intact at least until the 10 May deadline, but this is not necessarily so. According to a lawyer familiar with these issues, a “tangle” of motions and appeals concerning OPT are now pending in a pair of federal courts in Washington, D.C. The situation, therefore, has actually become more rather than less confused and uncertain.    

OPT came into existence in 1991, when the George H.W. Bush administration granted permission for foreign students on F-1 student visas to spend up to a year working at jobs related to their area of study, regardless of their field, either before or after they graduated. This move expanded previously existing permission for foreign students to do shorter periods of work intended to provide practical experience in their fields. Employers are not required to pay Social Security or Medicare taxes for these workers, making them cheaper than regular employees. 

In 2008, the George W. Bush administration extended the length of time that STEM OPT workers could remain in the country working on a student visa by 17 months to a total of 29 months. (The recent book Sold Out, on which we reported earlier this month, contains the text of a 2007 letter from Microsoft lobbyist Jack Krumholtz to then-Department of Homeland Security [DHS] Secretary Michael Chertoff discussing the possibility of extending the OPT time limit.) Both the establishment of the program and extension of the time period happened by administrative action rather than through provisions of the law governing student visas. The Obama administration has also proposed extending the time period even further, as well as expanding the fields eligible for the extension.

In March 2014, the Washington Alliance of Technology Workers (WashTech), Local 38073 of the Communications Workers of America, brought suit against DHS in the U.S. District Court for the District of Columbia, claiming that the OPT program violates U.S. law and harms U.S. workers by increasing competition for STEM jobs. In November of that year, Huvelle granted the plaintiff standing, meaning that the case could go forward.

The following August, Huvelle ruled that the OPT program itself is allowed to stand, but the 17-month extension granted in 2008 is invalid because, in promulgating it, DHS failed to provide the proper notice and opportunity for comment. Rather than cause disruption for workers and employers by immediately eliminating the extension—and resulting permission to remain in the country—she granted a delay, until 12 February 2016.

That 6 month period would presumably give DHS sufficient time to publish a new proposed extension rule before the 12 February deadline and avoid any lapse in OPT workers’ permission to remain in the country. Such a final rule would have to have been published by 12 December 2015, because final rules must be published 60 days before they are scheduled to go into effect. On 19 October, DHS published a new proposed rule that would grant a 24-month extension and announced a 30-day public comment period, but the 12 December deadline passed with no new final rule, causing widespread uncertainty and dismay. Later in December, citing an overwhelming number of public comments that its staff had to consider, DHS filed a motion requesting an additional 3-month delay, until 10 May, which Huvelle granted on 23 January.

This ruling appears to give DHS ample time to publish a new final rule before the extended deadline. Even so, the fate of the OPT extension, and of the program as a whole, is still not secure. After Huvelle’s August 2014 ruling allowing the OPT program to remain in place, WashTech appealed its original case to the US. Court of Appeals for the District of Columbia Circuit. Several legal issues far too complicated for this reporter to explain here are now pending in this case. It is not known when the appeals court will hear arguments or render any decisions or rulings, but briefs are due by the end of this month, which suggests the possibility of some action this spring.

But even if the appeals court reaches a decision on the overall legality of the OPT program, that may in turn also be appealed to the U.S. Supreme Court. In addition, the Supreme Court is poised to address major issues relating to the president’s (and, by extension, the administration’s) authority to interpret immigration laws in ways not explicitly authorized by law. Legal experts note that decisions made by the nation’s highest court could potentially affect the OPT program as well.

Decisions affecting the OPT program could therefore come from the appeals court, and conceivably even the Supreme Court, at times as yet unknown during the coming months. So, though Huvelle’s new order removes the 12 February deadline, the situation remains unpredictable. We’ll be watching as it develops.

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