Skip to main content

What You Need to Know about the WashTech Decision and it’s Impact on STEM Graduates and OPT

By
If you’re reading this, you may already know about the WashTech decision issued in August 2015 (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0529-43) and what it is about – an effort to prevent foreign students from being able to take advantage of the additional 17 month extension on their Optional Practical Training (“OPT”) if their field of study falls into the STEM category (science, technology, engineering, or math).  This extension was based on a rule issued by the Department of Homeland Security (“DHS”) in 2008 whereby it gave STEM students a maximum of 29 months of OPT after graduation.

                In summary, the Court invalidated DHS’ 2008 OPT rule based on a procedural flaw in their rulemaking – they failed to provide the public with notice and an opportunity to comment in advance of issuing the rule, to which DHS responded that it was necessary for the economy and to allow prospective H-1B workers to transition into new employment without having to depart the U.S.  Here are the important things you need to know about the Court’s decision and the future of OPT for STEM graduates:

1.       The Court upheld DHS’s interpretation of the law as permitting post-graduate OPT in opposition of WashTech’s argument that OPT only serves to circumvent the rules regarding H-1Bs and valid employment.  This means the Court agrees that a person in valid OPT status is authorized to work and that is not exclusive to an individual maintaining valid H-1B status only.


2.       The Court also found that DHS has broad authority to interpret valid employment through which F-1 students are legally authorized to work and that DHS’ interpretation cannot be limited simply by an effort to promote the security of our country.


3.       Most importantly, the Court stayed its order until February 12, 2016, to allow DHS to correct the procedural mistake made in 2008 and submit the rule for proper notice and comment.  Further, the announcements made in November 2014, will likely supersede the 2008 rule by expanding and improving the terms of OPT.


                In the end, WashTech’s efforts to eliminate the OPT 17 month extension for STEM students proved to be futile and only serve to allow DHS to correct their procedural errors back from 2008, while at the same time allowing time for the 2014 proposals to improve the OPT program for the benefit of foreign workers, our country’s economy and the quality of our workforce going into the future.
                Please contact Danielle M. Claffey at 404.949.8151, or by email at dclaffey@immigration.net with any questions.
Labels:

Comments

Post a Comment

Popular posts from this blog

If You Are An Immigrant (even a US Citizen), Here Are 9 Things You Should Know

By
Are you a Naturalized U.S. Citizen, Lawful Permanent Resident, Visa Holder, or an Undocumented Immigrant? We recommend you take the following steps to protect yourself in our current version of America. The last couple of weeks have reminded immigrants, even naturalized U.S. citizens, that they were not born in the United States. Our office has received countless phone calls, emails, and social media messages from people worrying about what their family’s future in the United States holds. Most people want to know what they can do now to protect themselves from what promises to be a wave of anti-immigration activity by the federal government. Trump's Executive Order on Interior Enforcement has some provisions that should make most Americans shiver.  We recommend the following actions for each of the following groups: Naturalized U.S. citizens. In particular if you have a foreign accent, and you are traveling within 100 miles of any US Border (including the oceans
231 comments
Read more

Seven Reasons Why the Georgia Legislature Should Repeal HB-87

By
Recently the Alabama Attorney General called on the Alabama State Legislature to repeal parts of Alabama's horrid anti-immigration law ( HB 56), because of the "unintended" consequences of the bill (frankly, what happened was not unintended). Because of the similarity between the two laws, Georgia's Speaker of the House, David Ralston was asked whether Georgia Legislature would repeal part or all of HB 87, Georgia own anti-immigration law. HB 87 has caused almost a half a billion dollars in damage to the Georgia economy (along with untold suffering in Georgia's immigrant communities) without any noted or reported positive effect. Speaker Ralston plainly stated that the Georgia Legislature would NOT do anything to repeal HB 87 . While it understandable why a politician would not admit that a pet bill he shepherded and pushed through the state legislature was simply bad law, it is also clear that Speaker Ralston is facing a challenge on his RIGHT in th
1 comment
Read more

Why is USCIS Taking So Long to Renew DACA Work Permits?

By
If the calls to our office are any indicator, there are thousands of DACA recipients whose work permit applications were filed at least three months prior to expiration, who are still waiting for their renewed work permits.  Without renewed permits, these individuals lose the right to work legally, the right to drive, and may once again accrue unlawful presence. The DHS published a notice in October 2014 advising DACA recipients that they could file their request for extension up to 150 days (5 months) prior to expiration.  As with all things government, very few of the DACA recipients, who tend not to frequent government websites, knew about the memo and many did not file so far before expiration perhaps thinking that extending a work permit was a like extending a drivers license, its is done in a few minutes.  As an experienced immigration lawyer will tell you, the USCIS does nothing quickly, and certainly does not worry that a person may lose their job or their driver's licens
16 comments
Read more