Foreign Student Training Program Rules Quietly Tightened

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By Laura D. Francis

U.S. Citizenship and Immigration Services has discreetly made a big change to a program that allows foreign tech graduates to work in the U.S.

The move will affect “thousand and thousands of people” in a special training program for foreign STEM graduates, immigration attorney Anna Stepanova told Bloomberg Law. Stepanova, with the Murthy Law Firm in Owings Mills, Md., said the change will impact more than half her clients.

International students with science, technology, engineering, and mathematics degrees who work under the extended optional practical training program must now work at their employers’ headquarters and not at a third-party client site, as was allowed before, according to the agency’s new interpretation of Obama-era regulations.

The change appeared on the USCIS website in January without any announcement. Many stakeholders didn’t notice the change until recently. The new requirements effectively prevent staffing companies from participating in the program, as virtually all of their employees work at client sites rather than at headquarters.

Staffing companies could also have a harder time getting H-1B visas as a result of the rule change. Cracking down on these companies’ use of the skilled guestworker visas has been a focus of the Trump administration.

Many employers use STEM OPT in order to hire foreign nationals straight out of school without having to wait for a decision on an H-1B petition. That option is now closed to staffing companies.

Unpleasant Surprises for Workers?

Immigration attorneys say they’re concerned that the lack of announcement about the change could hurt employees of staffing companies who now may be violating the STEM OPT rules without even knowing it. USCIS could, they say, use the program violation against these workers when they apply to change their immigration status to H-1B after their employers’ petitions are approved.

OPT allows foreign nationals to maintain their student visas while working in the U.S. after graduating from U.S. colleges and universities. Many employers use the program to hire foreign grads while waiting for them to be approved for an H-1B skilled guestworker visa.

For STEM OPT participants who already are working at third-party sites, there likely will be increased difficulty in getting an H-1B visa, Stepanova said. “I think what USCIS is laying the ground for is their ability to deny changes of status for all of those workers who are transitioning to H-1B,” she said.

Indian Companies Not Hard Hit

Indian information technology staffing companies like Infosys Ltd. and Tata Consultancy Services, USCIS may not see a significant impact from the change.

“The big Indian IT services firms don’t really use STEM OPT,” Jeff Lande of the Lande Group in Arlington, Va., said in a statement provided to Bloomberg Law. Lande is a consultant for NASSCOM, the trade association representing Indian IT companies.

“That said, to the extent they do, there is nothing here to prevent them from using STEM OPT at their development centers and their other locations. They just could not place staff at client sites,” Lande said. “Similarly, manufacturers, universities, consulting firms, engineering and the other U.S. players who use STEM OPT in much greater numbers also could not place someone at a client, partner, or another third-party site,” he said.

The Obama administration published the regulations in 2016, allowing foreign graduates of U.S. colleges and universities with STEM degrees to work for up to three years post-graduation if they meet certain training requirements and their employers use the E-Verify electronic employment verification system.

In the regulations, DHS required that an employer who signs a training plan form “be the same entity who employs the student and provides the practical training experience,” USCIS Deputy Chief for Media Relations R. Carter Langston told Bloomberg Law in an emailed statement.. “This oversight requirement better ensures the educational benefit, integrity, and security of the STEM OPT extension.”

Third-party placements undermine the program, “especially since there is increased difficulty in complying with the training plan requirements and an increased potential for visa fraud,” Langston said.

USCIS earlier this year posted information about the STEM OPT requirements “to provide full transparency to stakeholders,” Langston said.”

To participate, “an international student and the employer must clearly articulate the participant’s learning objectives and affirm the employer’s commitment to helping the student achieve those objectives, Langston said.

‘Nuanced’ Move

The 2016 regulations don’t expressly ban third-party placement of STEM OPT workers.

The Trump administration so far hasn’t touched the regulations despite taking a stance against other Obama-era work programs for foreign nationals. The Justice Department is defending the STEM OPT regulations in federal court against a challenge by U.S. tech workers who claim the rules are costing them job opportunities.

The most recent Homeland Security Department regulatory agenda includes a planned regulation to increase oversight of the STEM OPT program, but not to end it.

Instead, USCIS’s recent information to limit STEM OPT participation is a “nuanced” and “sophisticated move” for the agency, David North, a fellow with the Center for Immigration Studies, told Bloomberg Law. CIS advocates for lower immigration levels.

Lack of Announcement ‘Surprising’

The lack of any announcement about the change is “pretty surprising” considering the agency has been very vocal, especially on social media, about what it’s doing to implement the president’s Buy American and Hire American executive order, Emily Neumann of Reddy & Neumann in Houston told Bloomberg Law.

“I think this is one way that they are enforcing things without actually changing any laws or changing any regulations,” she said.

The administration isn’t likely to make big public moves on this front, said North, an official in the Johnson administration.

“What the Trump administration has done has largely been to move against expanded migration in areas in which corporate interests will not be hurt,” such as cutting refugee admissions and advocating for a border wall, North said. “The combination of big business and big academia” want STEM OPT, and “these are very powerful voices,” he said.

And OPT is a “stealth program” where it’s not obvious that foreign workers are getting the jobs, North said.

H-1B Issues

Immigration attorneys are particularly concerned that USCIS will use the new rule to prevent OPT participants at third-party work sites from switching to an H-1B visa while in the U.S.

When workers on STEM OPT apply to change their status from an F-1 student visa to that of an H-1B skilled guestworker, USCIS checks to make sure the person hasn’t violated the terms of his or her student visa, Neumann said.

Because this change took place so quietly, “it’s going to take everybody off guard,” she said.

William Stock of Klasko Immigration Law Partners in Philadelphia said the government “could certainly try” to deny a change of status, saying “‘We don’t think your OPT was valid.’”

And a legal challenge to that determination would be “difficult” because the law makes a change of status decision discretionary, Stock, the immediate past president of the American Immigration Lawyers Association, told Bloomberg Law.

The worker won’t be denied the H-1B entirely but would have to leave the U.S. and apply at a State Department consulate instead of just changing status from F-1 to H-1B from within the country, Neumann said. The can add extra background checks and time, causing a delay in the process that “can take months,” she said.

Litigation on Horizon?

The agency’s new interpreation “is the kind of policy change that cannot be announced via website under the cloak of darkness,” Jennifer Minear of McCandish Holton in Richmond, Va., told Bloomberg Law. Rather it “would certainly be my position” that USCIS would have to issue a proposed regulation and allow public comment first.

“I will expect that there will be a number of staffing companies who will be willing to litigate this” if STEM OPT or an H-1B is denied, Minear said.

Whether USCIS has the authority to change a program created by ICE, another agency, is an “interesting question,” and the agency is on “dangerous ground,” Stock said. But “it’s an interpretation that may or may not be narrower” than ICE’s own interpretation of the regulations, he said.

USCIS has encroached on other agencies’ decisions before, such as questioning the wages provided to H-1B workers when the Labor Department already signed off on them, Stock said. But it’s “not something that agencies normally do.”

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