Switching Foreign-Grad Visa Program Rules Illegal, Suit Says (1)

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By Laura D. Francis

U.S. Citizenship and Immigration Services illegally changed its policy on what types of employers can participate in a popular training program for foreign graduates of U.S. colleges and universities, a new lawsuit says.

The complaint is the latest in a growing number of legal challenges to the Trump administration’s immigration policies. It takes aim at a USCIS policy intended to block staffing companies from participating in the optional practical training program for science, technology, engineering, and mathematics graduates. The new policy appeared as a change on the USCIS’ website that was first noticed in April.

The agency already is acting on the policy, blocking international students from working for staffing companies that place them at third-party work sites, according to the complaint filed in the U.S. District Court for the Northern District of Texas. As a result, the USCIS effectively has changed 2016 Obama administration regulations without any notice or opportunity for public comment, the lawsuit says.

The lawsuit was filed by the ITSERVE Alliance, a trade association for information technology staffing companies.

According to ITSERVE, the USCIS also is applying the policy retroactively. It’s now blocking staffing companies and their workers from getting future employment visas if the companies placed the workers at third-party sites, even if doing so was permissible at the time, according to the lawsuit.

The STEM OPT program allows international students with STEM degrees to work for up to three years post-graduation. STEM OPT is often used as a launchpad for the H-1B skilled guestworker visa, a program that also has been a focus of the Trump administration.

The new policy could block many staffing companies from the H-1B visa program if placing a STEM OPT worker at a third-party work site counts against them when they later seek the visas.

The challenge follows another lawsuit that says a USCIS policy memorandum makes it impossible for staffing companies to seek H-1B visas.

The USCIS declined to comment because of its policy on pending litigation.

The case is ITSERVE Alliance v. Nielsen, N.D. Tex., No. 3:18-cv-01823, complaint filed 7/14/18.

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