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March 9 — International students in science, technology, engineering and mathematics fields will now be able to work for up to three years post-graduation under a final rule (RIN 1653-AA72) issued March 9 by the Department of Homeland Security.
According to the DHS, the final rule, scheduled for publication in the March 11 Federal Register, also includes greater oversight over the Optional Practical Training program and provides “cap gap” relief to foreign students with timely H-1B highly skilled guestworker petitions.
Between one-third and one-half of all students earning STEM degrees at U.S. colleges and universities are from other countries, William A. Stock of Klasko Immigration Law Partners in Philadelphia told Bloomberg BNA March 9.
Without the ability to pursue U.S.-based training in their field of study, they will flock to Canada or back to their home countries, according to Stock, who is president-elect of the American Immigration Lawyers Association. That means a host of American-trained scientists and engineers would be competing with the U.S. in places like India and China, he said.
The final rule—issued ahead of a May 10 court-imposed deadline—also makes several changes to a proposed rule issued in October 2015 . May 10 remains the effective date of the final rule in order to provide a transition period from a 2008 interim final rule, the DHS said.
The DHS received 50,500 comments in response to the proposal, the most in the department's history.
A large source of those comments came from foreign students either on optional practical training or who currently are in school and plan to take advantage of the STEM extension, Stock told Bloomberg BNA. About 34,000 foreign students currently are on Optional Practical Training, with hundreds of thousands more who are pursuing degrees at U.S. colleges and universities, the DHS said.
But another large group of comments came from members of the public who oppose additional immigration, Stock said. “This OPT issue has been something that the anti-immigration advocacy groups have focused attention on,” he said.
That focus gave rise to the lawsuit that resulted in the invalidation of the 2008 rule, Stock said. Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia in August 2015 upheld the DHS's authority to issue OPT regulations, but found the 2008 interim final rule deficient because it didn't go through the notice-and-comment process before becoming effective (Wash. Alliance of Tech. Workers v. DHS, 2015 BL 258791, D.D.C., No. 1:14-cv-00529, 8/12/15) .
Huvelle originally gave the DHS until Feb. 12 to issue new regulations, but later extended that deadline to May 10 largely because of the number of comments the DHS received (Wash. Alliance of Tech. Workers v. DHS, 2016 BL 18161, D.D.C., No. 1:14-cv-00529, 1/23/16) .
The Washington Alliance of Technology Workers—a group of U.S.-born STEM workers who claim they are harmed by the added job competition created by foreign STEM workers—has appealed Huvelle's ruling regarding the DHS's authority. That appeal remains pending before the U.S. Court of Appeals for the District of Columbia Circuit.
According to the DHS, the OPT program allows foreign students on F-1 visas to work for up to 12 months post-graduation to gain experience in their field of study. Under the invalidated rule, students pursuing STEM fields could extend their OPT by an additional 17 months, for a total of 29 months.
The new rule makes the STEM extension 24 months, for a total of three years of OPT. However, the rule provides that students can base their STEM extensions on more than one degree, allowing a maximum of two 24-month extensions—a total of five years—as long as certain requirements are met.
Those requirements include: the STEM extension is directly related to the student's field of study; the degree was awarded by a U.S. college or university that is accredited at the time the extension is requested; and the degree was obtained in a field recognized as STEM by the DHS.
The new rule contains specific fields of study that the DHS considers to be STEM. It also creates a process for that list, which appears on the Student and Exchange Visitor Program's website, to be updated periodically via Federal Register notice.
The rule also newly requires that the foreign student and his or her employer create a formal training program that contains certain learning objectives.
Under the rule, the DHS now will be conducting site visits, generally after notice is provided. However, unannounced site visits may occur if prompted by a complaint or other evidence of regulatory noncompliance.
The rule also contains several reporting requirements, including: a six-month validation period for students and their schools to confirm the validity of certain biographical, residential and employment information; an annual self-evaluation conducted by the student; a requirement that the student and employer report any changes in employment status; and a requirement that the student and employer report material changes to, or material deviations from, the formal training plan.
Employers must participate in the E-Verify electronic employment eligibility verification system. They also must attest that: the employer has sufficient resources and personnel to provide appropriate training; the student won't replace a full- or part-time, temporary or permanent U.S. worker; and the job opportunity helps the student attain his or her training objectives.
STEM OPT students must be offered terms and conditions of employment—including duties, hours and compensation—commensurate with similarly situated U.S. workers.
The final rule allows OPT students a maximum of 90 days of unemployment during the initial, 12-month OPT period. It also allows an additional 60 days of unemployment for students on the 24-month OPT extension, up from 30 under the 2008 rule.
Responding to the 50,500 public comments on the proposed rule, the department made some changes in the final version:
The regulatory provisions on the terms and conditions of employment are completely new, adding more protection for workers than there ever were in the program, Stock told Bloomberg BNA. It also continues the requirement that participating employers use E-Verify on their entire workforces, ensuring that they don't hire undocumented workers, he said.
Furthermore, the creation of a formal training and development component to OPT strengthens the tie between the beneficiary's academic work and the training experience, Stock said. The final rule also “put some real standards in place” regarding reporting requirements, whether volunteer positions or unpaid internships qualify and the minimum number of hours of employment, he said.
What happens to students when their STEM OPT extensions run out remains a gamble.
Allowing a longer OPT period does provide foreign STEM students more than one chance at the H-1B lottery, Stock said.
In the last few years, the demand for H-1B visas has far outstripped the 85,000 available each year, resulting in U.S. Citizenship and Immigration Services conducting a lottery to see whose petitions would be accepted for processing. Last year, 233,000 petitions were filed in the first week employers could apply .
Petitions filed on behalf of workers with bachelor's degrees have about a 33 percent chance of getting selected, while the chances go up to about 45 percent for workers with at least a master's, Stock said.
In addition, a foreign student could go straight from an F-1 visa to an employment-based visa, Stock told Bloomberg BNA. If an employer starts the process as soon as it takes on a STEM OPT student, the student likely will be able to get a green card before the STEM OPT period is over, he said.
However, because of per-country caps, that avenue is unlikely for students from India or China, he said.
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Text of the final rule is available at http://src.bna.com/dal.
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