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发帖数: 6 | 1 转载自 https://www.lexology.com/library/detail.aspx?g=4a6c033f-2dac-4a98-
9b64-227bd1990617
Yesterday, 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 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:
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.
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.
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. |
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