Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for August, 2015

17-Month STEM OPT Rule Vacated by District Court; Effective Date February 12, 2016

In an opinion dated August 12, 2015, the U.S. District Court for the District of Columbia vacated the Department of Homeland Security’s 2008 rule which extended the post-graduation optional practical training (OPT) by 17 months for eligible STEM students on F-1 visas.   The rationale was that DHS did not follow the normal rulemaking process which includes public comment period.   The court, however, ordered that the rule remain valid until February 12, 2016 in order to avoid substantial hardship to employers and F-1 STEM OPT workers and to allow DHS time to engage in a proper notice-and-comment rulemaking process.

Reasons for Striking Down the 2008 17-Month STEM OPT Extension Rule

The main reason behind vacating the 2008 rule, according to the court, is that DHS did not follow the normal rulemaking process which includes notice of the proposed rule and a comment period for the public to comment on the proposed regulation.   There are exceptions to the rulemaking process which allow agencies to implement rules without having to follow this process; however, the court took the position that none of the emergency rulemaking exceptions applies to the 17-month STEM OPT rule from 2008.    As a result, the court took the position that the rule was improperly implemented and should be vacated.

Vacatur Stayed Until February 12, 2016

Having vacated the rule, the court then agreed to put a temporary stay on the vacatur in order to avoid chaos (our words, not the court’s) which would inevitably ensue if all of the thousands of F-1 STEM OPT holders find themselves with invalid work permit.    To avoid a situation where thousands of recent F-1 STEM graduates will be left without work authorization (and possibly without status) and to avoid putting an undue burden on the employers who employ such workers, the court agreed to stay the vacatur until February 12, 2016, or six months from the date of the court order.

By leaving the rule in place until February 12, 2016, the court also intended to give DHS sufficient (but not too much) time to follow the normal public notice and comment rulemaking process.

The Rulemaking Process

At this time it may be helpful to remind our readers about the normal rulemaking process DHS will have to follow in order to reinstate the 17-month STEM OPT rule.

First, DHS will have to publish the proposed rule for the public to review for a specific period of time and during which period the public will have an opportunity to provide comments to DHS regarding the proposed rule.    After the comment period ends, DHS will review and consider comments made by the public and consider whether to change the proposed rules in any way.   Only once the final rule has been released and published by DHS would the rule become final and effective.

As a result of this rulemaking process, it may be months before the proposed rule would go into effect.   We do not know yet if DHS will submit the 17-month STEM OPT extension rule for public comment with any changes from their current form; it is likely that due to the limited time before February 12, 2016, DHS is not likely to amend the current rule substantially before they publish for public comment.

Are Current STEM OPT Holders Affected?

Certainly, they are affected in the sense that the government is about to engage in a process which may affect the STEM OPT program.    At this time, immediately after the court order, and at least until February 12, 2016, the STEM OPT work permits should remain valid and unaffected by this court order.

Similarly, we expect that USCIS will continue to process and approve 17-month F-1 STEM OPT extensions over the next six months as the rule continues to technically continue to be valid.

The main question is what happens over the next several months and whether DHS will be able to implement the new rule without any gap on and after February 12, 2016.   Ideally, DHS will be able to implement replacement rules (with same or similar substance) by February 12, 2016 and avoid any gaps in employment authorization or status to the thousands of F-1 STEM OPT workers.

However, it is not clear what would happen to the current F-1 STEM OPT workers if the rule is vacated on February 12, 2016 but the replacement rules are not effective at that time.    We will certainly monitor developments and clarifications on this topic (which are sure to be coming) over the next weeks and months and share with our clients and readers.

Is the H-4 EAD Rule in Jeopardy as a Result of This Court Order?

We do not believe that this court order vacating the 2008 17-month STEM  OPT rule suggests that the H-4 EAD rule challenge will be successful on the same reason.     The H-4 EAD rule, unlike the STEM OPT rule, did follow the normal rulemaking process.   The H-4 EAD challenge is still in its early procedural stages so we do not know what may happen in the future, but for now, the H-4 EAD rule remains unaffected by this court order vacating the STEM OPT rule due to rulemaking irregularities.

Conclusion

We understand that many F-1 STEM OPT holders may be alarmed by this court order.   At this time, we hope and believe that DHS will be able to follow the normal rulemaking process and “fix” the rule in time by February 12, 2016.     We expect that there will be a number of updates, clarifications and guidance on this topic over the next weeks and months and we will certainly monitor, share and analyze and such updated and developments.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with F-1 STEM OPT or related matters.

No comments

September 2015 Visa Bulletin – EB-2 India and China Major Retrogression; EB-3 Advances Nicely; Last Visa Bulletin for Fiscal Year

The U.S. State Department has just released the September 2015 Visa Bulletin which is the last Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the major retrogression in EB-2 India and EB-2 China and the notable forward movement for almost everyone in EB-3.

Summary of the September 2015 Visa Bulletin – Employment-Based (EB)

Below is a summary of the September 2015 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India retrogresses by thirty-three (33) months back to January 1, 2006.  EB-2 China also moves back by almost eight (8) years to January 1, 2006.
  • EB-3 ROW and Mexico advance by one (1) month to August 15, 2015 which is pretty much current.   EB-3 Philippines has advanced by about six (6) months to December 22, 2004.   EB-3 China  also advances by six (6) months to December 22, 2004 (although after a substantial seven-year retrogression last month).  EB-3 India  advances again (significantly by its standards) by about six (6) months to December 22, 2004.
  • The “other worker” categories for ROW and Mexico advance by one (1) month to August 15, 2015 while Philippines advances by six (6) months to December 22, 2004.   Other workers China remains unchanged at January 1, 2004 while India  advances by six (6) months to December 22, 2004.
  • EB-5 China advances by three (3) weeks to September 22, 2013.

Summary of the September 2015 Visa Bulletin – Family-Based (FB)

Below is a summary of the September 2015 Visa Bulletin with respect to some family-based categories:

  • FB-1 ROW, China and India move forward by one and a half (1.5) months to December 15, 2007.   FB-1 Mexico remains unchanged at November 15, 1994 and FB-1 Philippines moves forward by seven (7) months to October 22, 2000.
  • FB-2A moves forward again — this month the forward movement is by two and a half (2.5) months to March 1, 2014 for ROW, China, India and Philippines.  It moves forward by three (3) months to February 1, 2014  for Mexico.

Last Visa Bulletin For the Fiscal Year Bring Wide Swings

Before we go into analyzing some of the wide swings in this month’s Visa Bulletin, we would like to caution that the last Visa Bulletin for the fiscal year in September generally brings wide swings – either in forward or backward movement for many categories.    The reason is that as the Department of State is approaching the end of the fiscal year, it is evaluating the remaining available visa numbers to be issued for the last month and adjusting the Visa Bulletin dates either to stop any new filings (retrogression, to reflect few, if any, remaining visa numbers) or encourage filings and approvals (forward movement, to reflect remaining visa numbers).

Normally, at the beginning of the new fiscal year, as the annual visa numbers reset, we see adjustments back to “normal” in the October and subsequent Visa Bulletin.

EB-2 India and EB-2 China Major Retrogression

Applicants in the EB-2 India and EB-2 China categories will be disappointed with the significant retrogression in these categories.  EB-2 India goes back by two and a half years while EB-2 China goes back by eight (!) years.      As noted, the reason behind this sharp retrogression is the significant demand and number of filings under these categories over the last few months as the dates were moving forward.   As a result, and in order to allocate the available green card visa numbers over the remainder of the fiscal year (September 30), the Department of State has decided to move back the dates significantly to essentially stop the rate of new EB-2 India and China filings (and more importantly, approvals).

It is our expectation that once the new fiscal year begins with the October 2015 Visa Bulletin the cutoff dates for EB-2 India and China will return to their July and August 2015 levels (approximately).

EB-3 Advances Nicely for (Almost) Everyone

In contrast to the EB-2 retrogression, the EB-3 categories advance nicely for almost everyone.    EB-3 ROW and Mexico are now at August 15, 2015, which is almost current and which essentially means that anyone whose PERM is certified is eligible to file for a concurrent I-140 and I-485 petition.    This is a great (and rare) opportunity for many folks in the EB-3 category.

Similarly, EB-3 India advances significantly again, giving hope to the many EB-3 India candidates whose priority dates used to move only by one week at a time.    We are hoping that USCIS will now be able to clear many of the long-pending I-485s (perhaps subject to medical and employment verification/AC21 RFEs).

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the September 2015 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the September 2015 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

No comments