The F-1 Foreign Student Visa Optional Practical Training (OPT) program affects thousands of foreign students in the USA every year. Recently, OPT has been the subject of litigation, proposed regulations and changing adjudication trends.  This blog post covers each of these topics below as well as what does it mean for the thousands of students, schools and employers out there whose status could possibly be terminated next month.

OPT is authorized off-campus paid experiential work status for foreign students.  There are two types of F-1 student visa off-campus training opportunities – curricular practical training (CPT) and optional practical training (OPT).  CPT is usually part of a degree program and/or requirement for graduation – usually a “pay to work” type of experience such as a mandatory internship required for credit toward a program.  OPT is generally used right after graduation. Both require pre-approval by the school’s Designated Student Officer (DSO) and an approved application for work authorization from USCIS, part of the US Department of Homeland Security (DHS).  Most students get up to one year of OPT. Since 2008, graduates of US based STEM degree programs can get an additional 17-month OPT extension.  However, participating STEM OPT employers must participate in E-Verify, and the STEM degree must be on the ICE STEM List.

Litigation

The Washington (State) Alliance for Technology Workers,  a group that believes foreign students take jobs belonging to Americans, sued DHS on the grounds that DHS failed to engage in proper rule making when it initiated the 17-month STEM OPT program in 2008. The group also challenged the 12-month OPT program; however, the court dismissed that claim.  On August 12, 2015, the Federal District Court in the District of Columbia ruled that while DHS had the authority to establish STEM OPT, it did not properly follow notice and comment rule making procedures when it issued the 17-month STEM OPT rules.  Therefore, the court ordered the rules “vacated” and issued a “vacatur” order that would go into effect on February 12, 2016.

On August 18, 2015, the plaintiffs filed an appeal with the D.C. Circuit Court of Appeals.  On December 22, 2015, DHS moved the court to extend the vacatur to May 10, 2016, given that it was working on a proposed rule to cure the 2008 deficiencies (see below).  DHS had just received almost 50,000 comments to that proposed rule.  On December 24, 2015, Washington Tech Alliance moved for an extension of time to respond to DHS’ motion and the judge gave them until January 11, 2016 to respond.  On January 11, 2016, Washington Tech Alliance filed its motion opposing the extension of the vacatur to May 10, 2016.  It argues that the District Court cannot extend the vacatur while the appeal is pending and that even the 2015 proposed rules were issued without proper notice and comment. On January 14, 2016, DHS filed its reply brief  and further asks the court to clarify what the situation will be for students after February 12, 2016 if it does not extend the vacatur.

As of this writing, the 2008 17-month STEM OPT program, while held to be improperly initiated, it is still in effect until at least February 12, 2016. However, expect further news shortly.

Foreign students about to graduate, who have OPT valid past February 12, 2012, or who are ready to file for STEM OPT extensions are obviously concerned about their future and what the situation will be for them over the next few months as employers start to grapple with preparing H-1B applications subject to the cap that will be filed April 1. Litigation status can be followed on the NAFSA website.

Proposed Regulations

Meanwhile, since the court found that DHS did not comply with the rule making procedures to start the STEM OPT program, DHS drafted new regulations to cure the deficiencies of the 2008 STEM OPT regulations. See: “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.” In addition, by his November 2014 Executive Orders, President Obama ordered DHS to look at ways to modernize and streamline the existing immigration system in the absence of Congressional reforms.  One of the areas of annual consternation is the foreign student “cap gap” that occurs when OPT runs out before H-1B cap application season starts, or while cases are pending adjudication between April 1 and October 1 when new H-1B jobs can start.  The new proposed regulations attempt to address the cap-gap in addition to curing the 2008 deficiencies.

On October 19, 2015, DHS issued the OPT and Cap-Gap proposed regulations for public comment. The comment period closed on  November 18, 2015. Over 43,000 comments were received that can be viewed here.  Comments in support of the regulation from the American Immigration Lawyers Association can be viewed here, while comments submitted by NAFSA, the Association of International Educators, can be found here. After the government receives comments, it can take a few months to sift through the them before deciding on the final rules. The final rule can be different or similar to the proposed rule, taking into consideration or rejecting the comments received.  As of this writing today, the final rules are not yet out. Therefore, only the 17-month STEM OPT is in effect at least until February 12, 2016 unless the court extends the vacatur.  Notably, the proposed rule extends the STEM OPT provision to 24 months rather than the original 17 months in the 2008 rule!  This is helpful because it gives 2-year STEM OPT students at least two if not three shots at getting selected for the annual H-1B lottery.

Some of the other interesting proposals in the regulations include the following:

• Automatic extension of F-1 status for students with timely filed H-1B applications.
• Extends STEM OPT to 24 months (as discussed above) on top of the 12 months all students get for standard OPT.
• Allows students currently in a non-STEM program who hold previously acquired US STEM degrees in the last 10 years to get STEM OPT if the degree is on the SEVP list and related to the OPT STEM job.
• Allows students to get a second STEM degree and another 24 months of OPT based on the second degree.
• Qualifying STEM degrees must be from an institution of higher learning accredited by a US Department of Education accreditation agency.
• Qualified STEM degrees are managed by SEVIS but taken from a 2009 taxonomy of Department of Education Classification of Instructional Program (CIP) codes that will be expanded from time to time.
• The rules are fairly narrow as to qualifying “employers” with “supervisors” and new wage requirements.
• The rules add employer attestations regarding working conditions and wages.
• Employers have to develop formal Mentoring and Training Plans that must be submitted to the school’s DSO.
• Employers have to conduct evaluations of the students every six months, estimated by DHS to take only 30 minutes on a new Form 910.
• DSOs will be assigned some additional burdens.

Some problems, omissions or rules that should be amended include:

• Cap-Gap F-1 extensions should be valid to October 1 or the H-1B petition approval date, whichever is later, given delays in H-1B adjudications beyond October 1 in recent years.
• Non-STEM grads face the same uncertainties with the H-1B program as do STEM grads, and are equally deserving of experiential learning.  Therefore, they should also be able to have the same 2-year OPT extension. (Although STEM jobs make most of the OPT and H-1B news and are the most in demand, they are not the only allowable users of both programs.) There are other non-scientific jobs in demand, including in science and technology based companies.
• The STEM fields need to be updated regularly to match recent trends in degree subjects. Relying on the 2009 taxonomy is outdated.
• STEM OPT should be available to the self-employed and entrepreneurs who may not have traditional employers, supervisors, traditional wages or methods of performance review.
• The mentoring and training plan requirements will take longer than contemplated, adding extra burdens on employers and DSOs.  Burdens on new, small and innovative companies who stand to gain the most from STEM OPT students will find these requirements too burdensome and could be dissuaded from not hiring STEM students in this program.
• The employer attestations regarding worker conditions and wages do not sufficiently differentiate between trainees and regular fully trained professional workers.
• DSO requirements would require DSOs to become experts in STEM fields, which is not the nature of their work. This would be especially burdensome for DSOs where the student is relying on a former STEM degree, possibly from a different US institution, to obtain STEM OPT.
• Extend the OPT EAD filing deadline equally for STEM and non-STEM applicants and allow work authorization while the request is pending.
• Allow students to travel while extensions are pending or during authorized cap-gap.
• See also, many recommendations by NAFSA.

Stay tuned for more on the status of these rules. The timing of when the new rules will become final will probably be linked to what the court does about extending the February 12, 2016 vacatur order in the Washington Tech Worker case discussed above.

Adjudication Trends

Our office has been receiving calls from students who have received STEM OPT rejections or Requests for Evidence (RFEs), where USCIS sees a mismatch between the job duties and the STEM degree.  USCIS adjudicators appear to be cracking down on students through the OPT extension process by re-adjudicating whether the student’s job is directly related to the degree studied or whether the degree is truly a STEM subject.

USCIS relies heavily on the O*NET – “SOC” taxonomy of occupations – published by the Department of Labor for job descriptions and families of jobs. Another resource is the annual Occupational Outlook Handbook (OOH).  The SOC is updated sporadically; the OOH is updated annually, but neither is really up to date with rapidly changing job categories or titles in the sciences and technology world.  Many of the new jobs in data, robotics, biotechnology and other areas do not appear in the SOC or OOH.  Other newer jobs in the area of business intelligence and marketing of scientific or technology products or services often require a STEM background, but USCIS often construes business and marketing jobs broadly as if demanding only a generic business or MBA degree, when in fact the job demands more scientific knowledge. Frankly, I have seen graduates with generic business degrees working as baristas! I don’t think those types of jobs are meant for OPT, whether for STEM or non-STEM OPT.  Students and DSOs should be wary about this issue.  It is really important for students to carefully discuss with their DSO whether a potential job opportunity is a good match with the coursework taken, given that the purpose of CPT/OPT is to support the student’s training and experiential learning in the field being studied.

What should students, schools and employers do as of now?

Don’t panic.  These issues are likely to be resolved, though not without some confusion. USCIS has not sent any notices out to students yet, as it is waiting for declarations from the court in part.

However, BEFORE February 12, anyone eligible for OPT could theoretically apply with their DSO but its unclear whether an EAD would issue valid beyond February 12. There is also the chance that an EAD issued beyond February 12 it could be recalled depending upon the court’s order or USCIS policy or regulation. (This is what happened when USCIS mistakenly issued 3-year DACA cards when the court enjoined the new 3-year DACA program.)  As of today, no one really knows what will happen with currently filed STEM OPT requests or for people holding cards valid beyond February 12, 2016. Remember that that court’s vacatur does not apply to NON-STEM OPT EAD holders.

Employers should consider the potential new reality that there will be increasing burdens on them to connect the work of F-1 students to their degree programs, that there will be some supervision, monitoring and/or reporting required, and that job offers/duties need to have a very close nexus to the students’ studies.

It’s not clear whether a student on STEM OPT valid beyond February 12, 2016 will be able to continue working if the court does not continue the vacatur. DHS has pointed out to the court in its January 14, 2016 brief about the impact on thousands of students, schools and employers who will be affected after February 12, 2016.  Therefore, anything can happen in the next few days or weeks during this time of fluid developments.

Students should always have backup plans.  No one likes to think about going home before they are ready to, but nonetheless, sometimes that is the potential reality.  There may be other visa options through spouses, family or other employers depending upon the facts in each case.  More importantly, stay in touch with the news, the USCIS and ICE websites, your DSO and/or get advice from experienced immigration counsel to get some insight on potential alternatives to OPT and F-1 status.

Stay tuned on this blog for updates on students, OPT and H-1B issues.