Yesterday, the U.S. District Court for the District of Columbia significantly curtailed immigration benefits for foreign students in the United States on F-1 visas. In her opinion in the case Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security, U.S. District Judge Ellen Segal Huvelle invalidated USCIS’s 2008 17-month Optional Practical Training (OPT) extension rule. DHS argued that it had good cause to publish the regulation in 2008 as an emergency rule because thousands of highly skilled individuals educated at U.S. colleges and universities would otherwise have been forced to leave the U.S. Judge Huvelle held that DHS failed to show it faced an emergency situation in 2008 that exempted it from carrying out the notice and comment requirement, thus making DHS’ rule invalid.
The 2008 rule had three main benefits. First, the rule allowed F-1 students with degrees in certain Science, Technology, Engineering or Math (STEM) fields who work for employers enrolled in E-Verify to extend their OPT work authorization period from 12 to 29 months. Second, the rule eliminated the requirement that DHS expressly grant H-1B “cap gap” protection via notice in the Federal Register and instead made the granting of H-1B cap gap protections automatic. Third, the rule allowed F-1 students to apply for OPT during the 60-day period after graduation rather than requiring filing before graduation. All of those benefits have been eliminated with the invalidation of the 2008 rule.
Judge Huvelle stayed her decision until February 12, 2016 because the “immediate vacatur of the 2008 Rule would be seriously disruptive” and “would force ‘thousands of foreign students with work authorizations . . . to scramble to depart the United States.’” The Court said it “sees no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor distribution for the technology sector.” That being said, as of February 12, 2016 all of the benefits of the 2008 rule will be eliminated unless USCIS issues a new OPT STEM extension rule via notice-and-comment rulemaking. The rulemaking process can take 90 days or more from the date a rule is prepared for publication, however, so DHS will have to issue a new rule very quickly to avoid the consequences of this decision.
Unless DHS passes a new rule this decision will adversely affect three key areas of business immigration:
1. F-1 STEM work authorizations will stop being valid on February 12, 2016. This will affect both F-1 students who currently hold STEM OPT as well as individuals who would be eligible for STEM OPT as of February 12, 2016.
2. H-1B/F-1 cap gap will no longer be automatic. DHS will have to formally announce that the H-1B cap is met and then publish a notice in the federal register. This will result in uncertainty for both employers and F-1 students, as “cap Gap” protections will no longer be automatic but will instead depend on affirmative action by DHS.
3. F-1 students will only be permitted to apply for work authorization while still in school; post- graduation applications will be no longer available.
The invalidation of the 2008 rule is concerning because employers and students have relied on these provisions for seven years and have made hiring, promotion, and staffing decisions in reliance on the work authorization conveyed under the STEM OPT rule. Alternative work visa options are extremely limited for F-1 students on STEM OPT, particularly considering restrictions around H-1B visas, so the United States will undoubtedly suffer from brain drain because foreign students in STEM degree fields will be trained in the United States and have to leave the country to work for foreign competition.
All told, this is another example of the failures of the current patchwork approach to immigration. Congressional failure to act results in DHS taking action via interim rules and policy memos that can be overturned at a moment’s notice. Such an environment makes it difficult for foreign workers and employers to plan for the future, creating a situation that benefits no one.