Stay Just a Little Bit Longer

After a legal challenge -- still on appeal -- U.S. issues new rule extending the time some international students can work after graduation.

March 11, 2016

A new rule scheduled to be published today in the Federal Register will extend the postgraduation work authorization period for international students studying STEM fields in the U.S. The rule will come as relief to thousands of international students whose futures in the U.S. were thrown into question after a federal judge invalidated a 2008 rule governing the program on procedural grounds.

The new rule addresses a program known as optional practical training, or OPT, which permits international students to work in the U.S. for 12 months after graduation. Under the 2008 rule, students studying STEM fields were eligible to apply for a 17-month OPT extension, for a total of 29 months of work authorization.

The new rule published today will lengthen the extension from 17 to 24 months and enable students to apply for an extension at two different points of their academic career (after two different degree levels, e.g., a bachelor’s and a master’s), rather than only once. The ability of international graduates to work for up to three years at two different points in their academic careers while remaining on their F-1 student visas could allow them more time and flexibility to seek ways to stay in the U.S. legally, if that's their choice.

The new rule also includes new reporting requirements for employers, students and university officials and, for the first time, requires employers to put in place formal training plans. “We’re viewing STEM OPT as a continuation of their training,” said Rachel Canty, the deputy director of the Student and Exchange Visitor Program at the U.S. Department of Homeland Security, which issued the rule. “It’s not just regular employment. You see this with the institution of this new training plan, which emphasizes that the student and employer have to sit down together to say how are we going to use this job, how are they going to take the skills they learned in school and apply it to a work environment.”

The rule also includes new provisions intended to protect international students and American workers. It requires that hours, duties and compensation for STEM OPT participants be commensurate with terms and conditions for “similarly situated U.S. workers” and requires employers to attest that students hired through the program are not replacing Americans.

Herein lies the controversy surrounding the program. Proponents of OPT argue that the lure of postgraduation employment opportunities will help the U.S. attract international students and enable industry to identify top foreign talent, particularly in technical fields for which there are few qualified American job applicants. Opponents, however, argue that the program harms Americans by flooding tech fields with cheaper-to-hire foreign workers. (On the cheaper question, critics argue that policies that exempt some international students on F-1 visas, and their employers, from Social Security and Medicare taxes make them less expensive to hire than U.S. workers. International students generally begin paying Social Security and Medicare taxes after five years in the U.S.)

“The entire purpose of the OPT extension was to circumvent the H-1B [visa] quota, to provide more foreign replacements,” said John Miano, the lead lawyer in a lawsuit against the program filed by the Washington Alliance of Technology Workers and co-author of Sold Out: How High-Tech Billionaires & Bipartisan Beltway Crapweasels Are Screwing America's Best & Brightest Workers (Simon & Schuster, 2015). Congress sets limits on the number of H-1B skilled-worker visas granted per year, capped at 85,000, but there is no limit on the number of international students who can pursue OPT.

“When [OPT] was a year, no one really noticed because it’s fairly short,” Miano said. “But now that they’ve decided to turn this into an H-1B replacement, it’s on the radar and has brought the lawfulness of the entire OPT program into question.”

The Washington Alliance case challenging the legality of the program is pending in the U.S. Court of Appeals for the District of Columbia Circuit. In an August ruling, U.S. District Judge Ellen Segal Huvelle rejected Washington Alliance’s argument that the Homeland Security department exceeded its statutory authority in issuing the STEM OPT extension rule, even while she ruled that the 2008 regulation should be invalidated because it was promulgated without proper notice and comment. Judge Huvelle stayed her decision until February to allow DHS time to get a new rule in place and prevent hardship on the part of thousands of international students who would otherwise have “to scramble to depart the United States.” She subsequently extended that stay until May when DHS petitioned for additional time.

The new rule being published today will go into effect May 10 -- the day the old rule is set to expire. About 27,500 students are currently authorized to participate in the STEM OPT program.

“We are gratified that the Department of Homeland Security was able to put this rule out as quickly as they did,” said Heather Stewart, counsel and director of immigration policy at NAFSA: Association of International Educators.

DHS received more than 50,500 comments on a draft of the (now final) rule -- more, it said, than for any other regulation it has proposed. Many came from individuals who identified as international students in support of the rule, while other commenters objected to what they saw as the privileging of foreigners over Americans. “Here we go again, shoveling jobs out of reach for American workers and providing a leg up for foreigners,” one commenter wrote.

The preamble to the new rule, however, argues that a newly revamped and expanded STEM OPT program will increase American competitiveness.

“The changes will also benefit the U.S. educational system, U.S. employers and the broader U.S. economy,” the document states. “The rule will benefit the U.S. educational system by helping to ensure that the nation’s colleges and universities remain globally competitive in attracting international students in STEM fields. U.S. employers will benefit from the increased ability to rely on skilled U.S.-educated STEM OPT students, as well as their knowledge of markets in their home countries. The nation also will benefit from the increased retention of such students in the United States, including through increased research, innovation and other forms of productivity that enhance the nation’s economic, scientific and technological competitiveness.”

“The buried lead is the way in which this rule is justified,” said William Stock, a founding partner at Klasko Immigration Law Partners and incoming president of the American Immigration Lawyers Association. “You see that this rule is really being framed in terms of competitiveness -- preserving the competitive advantage of the U.S. higher education experience vis-à-vis these other countries that are going after the same market. We’re talking about the relatively limited market of middle-class students in other parts of the world who can afford a college education out of their home country and who have science and technical aptitude. The U.K., Canada, Australia, Germany -- they’re all competing for those same students,” Stock said.

“The OPT and its extended training period for STEM degree holders is what attracts many international students (including me) to choose U.S. as a destination for studying STEM majors,” Zheyuan Zhu, a first-year Ph.D. student in optics and photonics at the University of Central Florida, said in a comment he submitted on the STEM OPT rule. In an interview Zhu, who hails from China, said he said he was especially excited about the new training requirements for the STEM OPT program.

“This training and mentoring program will provide me with more skills and I believe it can make me more competitive in finding another job,” he said.


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