LAW OFFICES OF NORKA M. SCHELL BLOG
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The U.S. District Court for the District of Colombia 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 Hovelled 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 individual educated at U.S.
colleges and universities would otherwise have been forced to leave the
U.S. Judge Hovelled 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.
Judge Hovelled 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.’”
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 litigation continues and hopefully, STEM OPT will not be interrupted.