A USCIS Epiphany - Musings on F-1 STEM Workers and the Out-Of-Luck Programmers Guild

Chalk up one for USCIS and a Federal Judge.  The agency's 17-month extension of F-1 optional practical training has survived a motion for preliminary injunction sought by the Programmers Guild.  U.S. District Judge Faith S. Hochberg issued an August 5 order finding a lack of causal connection and insufficient harm to sustain the claim of Guild's members (out-of-work or underemployed engineers and programmers) that failure to grant a preliminary injuction would irreparably injure them.

USCIS's lawyers filed a nifty memorandum of law with apparently persuasive arguments, including a history of the agency's pre-INA (Immigration and Nationality Act) authority to grant employment authorization to F-1 students.  The government's memorandum contains language (italicized below) that may be useful for citation by the employer community, nonimmigrant applicants for benefits and the immigration bar in a request for compassion or expedited adjudication, agency recognition of extraordinary circumstances, comments to a proposed rule or arguments in support of legislation authorizing more H-1B visa numbers or recapture of unused employment-based immigrant visas:

Even were this Court to find Plaintiffs’ injuries “concrete and particular,” and even were the Court to find a viable causal nexus between Interim Final Rule [IFR] and Plaintiffs’ alleged injuries, Plaintiffs’ case for standing still fails because this Court cannot redress their injuries. Foreign students might still petition for H-1B visas; employers might still hire them. Jobs might be exported overseas as U.S. employers try to remain competitive in a global market. Practical training has existed for over sixty years, yet Plaintiffs, by their own admission, were “unemployed” or “underemployed” before promulgation of the IFR. Plaintiffs misdirect their attack on the extension of OPT within the Interim Final Rule.

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Were the Court to issue a preliminary injunction, thousands of otherwise lawfully present students could be forced out of status. Notwithstanding the hardship this would work upon these students in forcing them to leave the country to apply for an H-1B visa, an injunction would have more serious consequences still. A student’s eligibility for OPT (and by extension, a change of status to an H-1B visa) depends upon maintaining lawful status. See 8 U.S.C. § 1258(a) (limiting changes of nonimmigrant status to aliens who have maintained lawful status). A preliminary injunction would force thousands of students out-of-status.

Were the Court to enjoin this IFR, and thrust thousands of students out-of -status, the enormous disruption would affect not only students and prospective employers, but other more collateral interests. Stripping lawful status away from these students would result in untold confusion [for] third parties and the public. The preliminary injunction Plaintiffs seek would not preserve the status quo, it would throw an orderly and predictable system into a chaotic mess, as neither students nor employers could be sure of who could work or when [italics supplied].

Turnabout is fair play.  Hoist the government on its own petard. (I'll stop gilding the lily for now with trite chestnuts.) 

Remind them with their own words that insensitive rules and rulings result in extraordinarily harsh and irreparable consequences to human beings and American businesses.  If USCIS won't listen to employers, foreign citizens and immigration lawyers, maybe they'll listen to themselves.

Comments

[w]

It looks as if there must be an H-1B LCA filed for the student in the following fiscal year, in order to qualify for the OPT extension. I guess the student could also "shop" for an EB offer -- of course salary will be secondary.

This rule also ameliorates the so-called "cap-gap" problem by extending the authorized period of stay for all F-1 students who have a properly filed H-1B petition and change of status request (filed under the cap for the next fiscal year) pending with USCIS. If USCIS approves the H-1B petition, the students will have an extension that enables them to remain in the United States until the requested start date indicated in the H-1B petition takes effect.

http://www.dhs.gov/xlibrary/assets/press_opt_ifr.pdf

As for the non-STEM students, who are just out of luck, so much for diversity, of intellects that is.

America must in far worse shape than the adminstration is owning up to.

[Angelo Paparelli]

Thank you "w" for your comment.

You asked a few questions and I'll respond (with the understanding that I am not providing legal advice but only general comments):

Does the OPT extension apply to STEM Employment-based visa aplications as well as H-1Bs?

[Angelo's Answer]: The OPT extension for STEM F-1 students does not apply to either persons in H-1B or any other employment based nonimmigrant or immigrant visa classification. It only applies to F-1 students granted optional practical training.

Is it the government's intention to force all employment based immigrants through the six year H-1B program before they can apply for an EB visa and serve its 5 year LPR requirement?

[Angelo's Answer]: I'm not able to read the government's state of mind; hence, I can't speculate on its intention. Certainly, an employer can sponsor an H-1B worker at the time of initial hire and with luck and forward movement of the priority date achieve LPR status before the prescribed six-year maximum period of stay or any AC-21 extension beyond six years should occur.

Why are only STEM graduates eligible for the OPT extension, is deportation not a hardship for non-STEM students?

[Angelo's Answer]: Yes. As Jimmy Carter said, "life is unfair."

F-1 student can extend their stay simply by taking more coursework and informing USCIS. How much of a hardship is this?

[Angelo's Answer]: For some, the hardship of paying more tuition could be substantial. For others, it may be trivial.

[w]

Does the OPT extension apply to STEM Employment-based visa aplications as well as H-1Bs?

Is it the government's intention to force all employment based immigrants through the six year H-1B program before they can apply for an EB visa and serve its 5 year LPR requirement?

Why are only STEM graduates eligible for the OPT extension, is deportation not a hardship for non-STEM students?

F-1 student can extend their stay simply by taking more coursework and informing USCIS. How much of a hardship is this?

The latest NSF figures (2004) show...

Science and engineering degrees awarded

18,606 Bachelors degrees to Non resident aliens
35,336 Master's Degrees to Non resident aliens
9,122 Doctorate Degrees to Non resident aliens

For postgraduates, there are...
40,000 EB-1 visas
40,000 EB-2 visas
20,000 exemption in the H-1B program
and unlimited O-1 visas available to these graduates.

Another 40,000 EB-3 visas (and recaptured visas from EB-2) are available to EB-3 applicants consisting of Bachelor, Associate and upto 10,000 non-degree holders.

The OPT extension is obviously directed at Associate and Bachelor degree holders. 96% of the S&E Bachelor degree graduates are citizens and permanent residents.

[Angelo Paparelli]

Thank you for your comment.

With all respect, there is no disloyalty to my fellow citizens in suggesting, in the government's own words, that compassionate immigration policies contribute to America's prosperity and overall wellbeing. I'm puzzled, however, in your suggestion that I should read and remember the last sentence of the Declaration of Independence and the Preamble to the Constitution (both of which I reproduce below). There is nothing in these hallowed documents which suggest that my posting involved traitorous behavior. On the contrary, they speak of securing the blessings of Divine Providence, pursuing justice, promoting the general Welfare, and securing the Blessings of Liberty to ourselves and our Posterity. That's what a fair and compassionate immigration policy will do.

Thank you nevertheless for grouping me with a federal judge who applied the law and rejected a spurious motion for a preliminary injunction.

Angelo Paparelli

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Last Sentence of the Declaration of Independence

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Preamble to the Constitution

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

[an American]

I consider Angelo Paparelli a traitor against the interests of his fellow American citizens. He and Judge Hochberg should read and remember the last sentence of the Declaration of Independence and the Preamble to the Constitution.