By Jinhee Wilde
In April 2008, the U.S. Department of Homeland Security (DHS) issued an interim final rule that extended eligibility for Optional Practical Training (OPT) employment authorization by 17 months for graduates from U.S. educational institutions with degrees in science, technology, engineering or mathematics (“STEM”) fields, provided their employer was enrolled in E-Verify. The impact of this new rule was to allow a period of OPT employment authorization for qualified foreign nationals for 29 months – the initial 12 months of OPT plus an additional 17 months for those with qualifying STEM degrees. Thousands of students and employers participating in the E-Verify Program benefited from this extension rule, which also relieved the pressure brought by too many H-1B petitions and visa quota restrictions. Without this extension, many applicants waiting for their H-1B visas would have had to leave the U.S. once the relatively short 12-month period of OPT expired.
Then in March 2014, the Washington Alliance of Technology Workers filed a suit in the U.S. District Court for the District of Columbia. In the case of Washington Alliance of Technology vs. Department of Homeland Security, they alleged that the DHS acted ”arbitrarily and capriciously in promulgating the 2008 rule without first subjecting it to a notice and comment period, in violation of the Administrative Procedures Act. DHS argued that the emergency rule was needed to ameliorate the problems experienced by high-tech employers due to the H-1B quota, and that they wanted to implement the rule so that eligible STEM graduates could immediately take advantage of it.
On August 12, 2015, the Court issued an order vacating the 2008 STEM OPT extension rule. The court wrote that DHS’ reasons for the emergency exception were too general to constitute an emergency. Therefore, the agency acted improperly in promulgating the OPT extension rule without notice and comment from the public. In addition, the court also vacated the subsequent amendment made by DHS, the expanded list of STEM designated-degree programs.
However, the court decided that immediately vacating the new rule “would be seriously disruptive” to not only thousands of F-1 visa holders in the U.S. with currently valid employment authorization who would have to scramble to depart the U.S., but also to employers if employees had to immediately leave. The court ordered instead that the vacatur be stayed for six months to February 12, 2016 to allow DHS the time to submit the rule again with appropriate notice and comment.
Therefore, the judge’s verdict does not invalidate the employment authorization for current STEM extension holders, nor does it preclude an individual from applying for and being granted a STEM extension up until February 12, 2016. With the six-month vacatur, DHS should have sufficient time to issue the rule again for notice, comment, and finalization prior to February 12, 2016. If DHS follows the Court’s direction, there should continue to be no impact on STEM or “cap-gap” OPT extensions.
It is important to note that the Court didn't reject the substantial reasonability of the rule, but focused on DHS's 2008 rulemaking process. It is also noteworthy that, in November 2014, President Obama announced a series of new policies and regulations supporting high-skilled businesses and workers. Among these policies, some were specially formulated in terms of notice and public comment so as to expand the number of degree programs eligible for OPT and extend the period and use of the OPT program. Therefore, the actual impacts arising from this situation may drive DHS to issue an interim rule more applicable and beneficial to foreign students, American employers, and all workers.
Non-immigrant Visa and EB-5
Before cheering for the possibly-issued STEM extension rule, please note that both STEM and H-1B Visas are based on non-immigrant employment authorization. In other words, those holding an OPT, STEM OPT or H-1B Visa can no longer stay and work in the U.S. once the visa expires. But there are several ways for F-1 visa students to obtain permanent residency as green card holders. One way is to get married to an American citizen or a lawful permanent resident and have him/her act as a sponsor. Another way is to have an American employer act as a sponsor (EB-2 for those holding a Master's Degree or above and EB-3 for those holding a Bachelor's Degree) or apply for an EB-5 visa.
The cutoff dates for mainland Chinese residents in EB-2 and EB-3 categories respectively retrogress to January 1, 2006 and December 22, 2004. Even if you are lucky enough to have an employer sponsor you and cooperate with the U.S. Department of Labor under the scrutiny of recruitment and registration based on PERM LC, you will also need to wait for quite a long time. Therefore, applying for an EB-5 visa with a priority date of September 22, 2013 is especially suitable for students who may get EB-5 investment gifted by their parents.
The best time to apply for an EB-5 visa is at least two years before obtaining a degree, since the EB-5 application process will take at least two years. In this way, the students may apply for jobs without any limitation as green card holders, which is the best option. However, due to the 12-month OPT, students may prepare to apply for an EB-5 visa one year later. If you are a STEM student, you needn't apply unless you graduate and are ready to apply for a job provided that the cutoff date for EB-5 China is no longer retrogressed.
A commonly-raised question is what to do after submitting the I-526 petition and before obtaining a green card for travel. Since F-1 (and OPT) visas are directed at non-immigrants, if you show any immigration intent when filling in the I-526 Petition, in principle, you may not be eligible for a non-immigrant visa to the United States unless you indicate in the Petition that you are willing to apply for an immigrant visa at the consulate (DS-260). As long as F-1 visa holders study in schools or work under the OPT program as stated, they can continue to stay in the U.S. until their visas expire. Besides, the F-1 visa holders can apply for changing schools by submitting the I-20 Petition without the need of returning home and re-applying for a new visa. You may stay in the U.S. in this status and once the I-526 petition is approved, you may submit the I-485 petition for status adjustment. You may participate in a new course after the OPT period expires and file a new I-20 Petition to retain F-1 status. For example, a student with a Bachelor's degree may hope to participate in the Master's degree program in their school or a student with a Master's degree may hope to participate in the program for another Master's degree to expand his/her existing degree. However, if the student departs the U.S. or files a petition for adjustment of status from F-1 to F-2 or a new F-1 visa petition (DS-160) after submitting the I-526 petition, they will be presumed with immigrant intent in the case of F non-immigrant visa category and will be considered ineligible.
Therefore, if you hope to file the I-526 Petition, you need to determine and plan in advance whether to you wish to continuously stay in the United States or apply to the consulate (DS-260) before getting approval of the I-526 Petition and submitting the petition for status adjustment (I-485). If any changes occur, be sure to consult with your EB-5 attorney before your trip in order to avoid unintentionally violating related laws and making the officials from DHS and the consulate think you provided false information. In case of any misrepresentation or false information found, you may never benefit from any immigration policies in the future.