F1 visa students may be allowed to work in the US for 6 years after February 12, 2016

NEW YORK: A ruling by a judge of the District Court in the District of Columbia has potentially paved the way for students on F1 visas graduating with certain STEM degrees to be able to get Optional Practical Training (OPT) work permits for a period as lengthy as six years, equivalent to H-1B visa holders, after February 12, 2016.

The ruling by U.S. District Court Judge Ellen Huvelle of the District of Columbia, on August 12, was a classic case of a double whammy for the Washington Alliance of Technology Workers (WATW). They actually won the lawsuit they had pursued against allowing F1 visa students graduating with STEM degrees additional OPT time – but is likely to end on a dismal note.

That’s because despite the negative ruling, the F1 students are likely to get even more time to stay on and work in the US, if the Barack Obama administration complies with their promised Executions Actions, which has been in the pipeline for implementation.

Even though the F1 students came up on the wrong end of the lawsuit, the judge’s ruling may be actually a blessing in disguise. The ruling has acted as one door closing, only for the prospect of another, better door opening in the near future; less than six months away, in fact.

The judge, in response to the WATW lawsuit to curtail an additional 17 months of OPT for F1 students who graduate with certain STEM degrees, and to limit it to just 12 months, ruled that the Department of Homeland Security (DHS) must vacate that rule which came into effect more than seven years ago, by February 12, 2016.

The judge determined that the 2008 DHS rule was deficient because the agency failed to publish the rule for a public notice and comment period as required by Federal rulemaking provisions, according to Seyfarth Shaw, a prominent law firm.

Acknowledging that immediately vacating the rule would be disruptive and harmful to the U.S. technology sector and force many foreign students to leave the U.S., the judge stayed it until February 12, 2016, a period during which DHS may submit the rule for proper public notice and comment to “cure the defect”.

At present, the OPT for international students who finish either an undergraduate or graduate program from an DHS certified educational institution in the US is either 12 months – for non-STEM (Science, Technology, Engineering, Math) related programs – or 29 months, for STEM related programs.

During this period of time, students are allowed to take up any work in their field of study and be paid for it, or not be as a trainee, as the case may. It’s also a crucial time for students who intend to stay on in the US to stake their roots, prove to be an asset at work. Their best bet is to have their company sponsor them with an H-1B visa during the OPT time-frame. If that fails, or even after the company sponsors them for an H-1B visa, but they don’t make the cut in the lottery system due to soaring H-1B visa demand, their next best alternative is to study further, stay on as a legal resident. Ultimately, to try their luck anew at another shot at a work visa.

Many students, however, are forced to go back to their country of origin; cannot afford further studies at exorbitant tuition rates. Some do end up studying further, in hopes their fortunes will change in the next round of application for a work visa. But there is no guarantee plans will work out.

To help the F1 students, especially those with STEM degrees, have a better shot at job employment and continue to stay on in the US, the DHS had proposed to make it a level playing field for F1 students, and give benefits startlingly equivalent to H-1B visa holders.

According to new regulations proposed by the DHS and submitted before the Senate Judiciary Committee, students with STEM degrees can stay on in the US and work for a total of six years under OPT – three years after finishing an undergraduate program, and then if need be, another three years after a graduate program.

Also, for students graduating with non-STEM U.S. degree programs, but who have an earlier STEM degree under the belt, the work period will be good for three years. For example, a student who did an undergraduate program in IT or Physics, and then goes for an MBA, the student would be entitled for three years of OPT, based on his or her undergraduate STEM-related program. For non-STEM related programs, the time-frame for OPT would still remain 12 months.

Till this ruling by judge Huvelle on August 12, it was not determined as to how long DHS would take to implement the new rules for OPT, to benefit students on F1 visas. It was likely that it would not have happened before at least July of next year. There was also the possibility that with elections around the corner, and the immigration debate heating up, the executive actions may have been deferred till a new president took office, in January, 2017.

Not anymore.

The DHS would now likely keep its promise to extend OPT for students on F1 visas, after February 12, 2016. It’s also a possibility that DHS may just comply with the judge’s ruling and go ahead with the regulations required to maintain status quo. If that happens, the then present 29 months and 12 months, respectively, for F1 students to go through with their OPT, would remain in place.

It’s hard to imagine the DHS not complying with the judge’s orders, which would force tens of thousands of students currently under OPT to immediately pack their bags and leave for their home countries.

Earlier this year, the DHS started to give work permits to certain H-4 visa holders who meet eligibility requirements. Again, this was part of the executive actions by president Obama.

It’s also important to remember that competition for H-1B visas has increased a lot. In the 2016 H-1B cap which opened on April 1, 2015, the limit of 65,000 H-1B visas for skilled workers from overseas and 20,000 visas for F1 students, was reached on April 7, 2015. The USCIS received approximately 233,000 H-1B petitions, nearly three times the number of available visas.

In 2008, DHS estimated that there were approximately 70,000 foreign nationals in F-1 status on OPT, and that one third of those students had earned degrees in STEM fields. The 2008 rule was introduced by DHS to address the immediate competitive disadvantage faced by U.S. high-tech industries, and with the hope of quickly ameliorating the adverse impact on the U.S. economy.

Judge Huvelle’s ruling has also no impact at present for students who are under OPT.

F-1 students with an approved STEM OPT extension are eligible to continue working while DHS complies with the court’s ruling.  USCIS is expected to continue to adjudicate pending applications for STEM OPT extensions and accept new applications. To reinstate STEM OPT and avoid interruption of employment authorization for current F-1 STEM OPT beneficiaries, DHS is now required to publish a STEM OPT regulation through regular notice and comment procedures and take necessary steps to implement the rule prior to February 12, 2016.

If DHS does implement the six years of OPT for STEM graduates, it would be hard for even the likes of Donald Trump to complain.

Although Trump has come out swinging against expanding the H-1B work visas, and wants to curtail and shut them down, he has been in favor of helping foreign students who graduate from US universities, get job opportunities here.

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