On Mar 16 2016 by William A. Stock

New Immigration Rule Provides Opportunities for Tech Students

Since 1947, international students in the United States have been given employment authorization to engage in "practical training" within their field of study. This work authorization allows international students to obtain practical experience in their field of study as they launch their careers. Since a significant percentage of the students studying technical fields come to the United States on student visas from other countries, recruiting and retaining those students is a ­significant issue for employers hiring ­entry-level technical workers.

Some anti-immigration activists have been trying to make the program controversial, alleging it causes increased ­unemployment among U.S. technology professionals, and was created without ­statutory authority. A court challenge brought under the Administrative Procedure Act is pending in the U.S. Court of Appeals for the District of Columbia Circuit, after the district court found that authorizing practical training was within the U.S. Department of Homeland Security’s authority, but that DHS had improperly used the “interim rule” procedure in 2008 when expanding the length of time certain students could receive training in technical fields. The court then struck down the rule, but gave DHS until May 10 to ­promulgate a new rule pursuant to full notice and comment rulemaking.

Since the court’s ruling last year, employers, universities and international students in F-1 nonimmigrant student status have eagerly awaited a final rule allowing F-1 students in science, technology, engineering and mathematics (STEM) fields to obtain a total of 36 months of Optional Practical Training (OPT) after completing their studies. As of March 11, a new final rule has been published, and is set to go into effect May 10, just in time for the deadline.

This final rule includes continued authorization for students on all forms of OPT to receive an automatic extension of employment authorization to cover the gap between April 1, when H-1B “specialty worker” visa petitions can be filed for them, and Oct. 1, which is the effective date for those H-1B petitions that are successful. For all F-1 OPT students whose OPT ends between April 1 and Oct. 1, the rule continues the “cap gap” employment authorization for those students who have a cap-subject H-1B filed on their behalf. As in the current rule, the new rule continues employment authorization until the H-1B petition on behalf of the student is rejected, denied, revoked by U.S. Citizenship and Immigration Services, or until Oct. 1, whichever is latest. The new rule also clarifies that employment authorization ends when the petition is withdrawn by the employer, and that it ends if the H-1B petition is approved, but the student’s change of status portion of the petition is denied.

The rule continues the requirement that in order for the student to receive a STEM extension, the student’s employer must be enrolled in the E-Verify program for all the employer’s new hires, at least at the ­location where the student will receive OPT. The employer continues to be required to inform the student’s school of any termination of the student’s employment (or non-authorized absence from work for five consecutive days).

The rule contains a significant new requirement for STEM OPT extensions in the form of an “individualized training plan” for each student. The student must complete the training plan form (new Form I-983) and have it countersigned by the employer. The form is submitted to the student’s school, which must review it before recommending a STEM OPT extension. DHS has launched training and compliance materials to assist students and schools in meeting this new requirement.

As part of signing the I-983, the employer must certify that the duties, hours and ­compensation of the STEM OPT student are “commensurate” with the employer’s ­similarly situated workers, or if the employer has fewer than three comparable U.S. workers, with the general wages and working conditions of U.S. workers in the area. The employer also certifies that it has sufficient resources to provide the training and evaluation of the student called for in the training plan, and that the STEM OPT student will not replace a full- or part-time, temporary or permanent U.S. worker.

The new rule provides that a student in a designated STEM field can receive a 24-month “STEM extension” of OPT after completion of a one-year period of OPT. The rule clarifies that the student’s field of study (as reflected by the most recent participation record for the program in the government’s Student and Exchange Visitor Information System system) must be on the list of STEM fields at the time of the STEM extension application, and need not have been on the list at the time the student earned the degree. The rule also contains provisions allowing for double major and dual-degree program students to obtain a STEM extension, so long as one of the ­majors or degrees was in a STEM field.

The new rule provides that students may receive up to two STEM extensions in their lifetimes, an increase from the prior rule, which only allowed one such extension. A student can only receive a second grant of OPT after completing a higher degree (e.g., a student can complete a bachelor’s degree, use OPT, return to school for a master’s degree and receive a second one year grant of OPT), and so can only receive a STEM extension based on a higher degree than the first one earned.

The new rule expands eligibility for STEM extensions to students whose most recent degree was not a STEM degree, but who earned an earlier STEM degree from an accredited U.S. school. For example, a student who majored in electrical engineering at the bachelor’s degree level, and then earned an MBA, is eligible for OPT based on the MBA, and a STEM extension of that OPT based on the bachelor’s degree.

The rule provides that U.S. Immigration and Customs Enforcement, a DHS ­component agency, will enforce the rule through site visits to employers, which will normally be announced unless in response to a complaint or other evidence of noncompliance. While the regulations do not expressly provide for any sanction other than termination of the student’s employment authorization, it is important to note that the employer’s attestation is signed under penalty of perjury, which could serve as the basis for prosecuting noncompliant employers criminally.

The issuance of the final rule resolves the specific APA issue now pending before the D.C. Circuit, but the court will still have to deal with the plaintiffs’ statutory authorization argument. Of note in this regard, the preamble to the final rule did set out the history of the OPT regulations and Congress’ many opportunities to object to the issuance of OPT without having done so. The rule was primarily justified, however, on the basis of the competitive advantage it gave to U.S. universities and colleges, who compete with schools in Canada, Australia, the United Kingdom and other advanced ­economies for these international students (and their tuition dollars). With this final rule, the United States continues to be the pre-eminent destination for the best ­students in the world.

Reprinted with permission from the March 16, 2016 edition of the The Legal Intelligencer © 2016 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com877-257-3382reprints@alm.com.