DHS deal on OPT effective today is a backroom H-1B increase
DHS deal on OPT effective today is a backroom H-1B increase
Date: Wednesday, April 09, 2008 2:58 AM
<<<<< JOB DESTRUCTION NEWSLETTER No. 1852 -- 4/08/2008 >>>>>
Michael Chertoff just signed a job destruction warrant for graduates of our
universities, and he delivered a career buster to thousands of Americans.
Haven't heard about it yet? Well read on because if the mainstream media gets
its way you won't know what hit you.
The DHS regulation to extend the Optional Practical Training (OPT) visa goes
into effect today. It was signed by Micheal Chertoff on April 2. All of this
just silently happened without a vote in Congress, and without public debate.
It just happened and it appears that no politician can be held accountable
during this year's elections because it was done by bureaucratic fiat.
Universities scored a huge victory as well as private companies who want vast
quantities of cheap, educated labor, It was a stinging blow to parents who
sacrificed to give their kids a future by paying for their educations.
Institutions of higher learning aren't the only winners either. More students
on OPTs mean that the available H-1Bs can be used for other types of foreign
workers. Effects will be felt all the way up the job food chain.
Make no mistake about it; this regulation is a huge de-facto H-1B increase.
In a sense it's worse than an H-1B increase because employers who hire foreign
students to work on OPTs have far fewer restraints than those who hire H-1Bs.
OPTs don't have protections that H-1B provides such as "good faith efforts" to
find American workers or prevailing salaries to are supposed to keep Americans
from being underbid by cheap labor.
This regulation will create a huge pool of foreign students on OPTs that
remain in in a holding pattern until they get an H-1B or green card. They will
be perpetual laborers who take scarce interships that American students
desperately need. While the foreign grads wait in line for H-1B visas their
growing numbers will be used to justify an emergency H-1B increase. We will be
barraged with media sob stories that show hard working OPTs that are facing
deportation. Can ya just picture it?
It's not just about OPTs either. Foreign students on F-1 visas live under the
fear that they will go out-of-status if they lose their job. Not any more!
They can now be unemployed for up to 4 months out of twelve and still
considered to be in-status. That gives them plenty of time to "grind with
American girls" (see previous newsletter on OPT). Now foreign students can
have it all at our expense -- educations, jobs, and vacations on the beach!
You can read the entire regulation by going to this link. It's 48 pages long,
so plan to read this one when you are going to do a long stint in the toilet
room. If you have any doubt that this is a de-facto H-1B increase, just look
at the title.
Extending Period of Optional Practical Training by 17-Months for F-1
Nonimmigrant Students with STEM Degrees and Expanding CapGap Relief for All F-
1 Students with Pending H-1B Petitions
DHS NO. ICEB-2008-0002
ICE NO. 2124-08
Normally when a regulation is being considered there is a period of public
comment. Government agencies do this to at least give a perception of
considering public opinion. Not this time! It was shoved down our throats with
no warning at all.
The DHS circumvented the normal procedure by declaring the extension as vital
to the public interest -- in other words a national emergency that's so urgent
it can't wait for debate. They put in on about the same level as a dirty bomb
attack! Hmmmm, come to think of it, this is a dirty bomb attack!
NOTE: On page 23 of the 48 page document the "Administrative Procedure Act"
is evoked in order "To avoid a loss of skilled students through the next
round". What they mean is that there is a lot of foreign students who are
about to lose their OPT status because they haven't been able to get an H-1B
visa, and their employers are hopping mad about the prospect of hiring
Americans to replace them.
On that same page it says that "the delay created by the notice and comment
requirements would result in serious damage to important interests." Just
guessing, but I'll bet that all-important interest they are talking about has
more to do with what Bill Gates demanded when he went to Washington DC than
whatever is good for the public.
In case you are curious how to verify if the regulation went into effect, you
must observe the Federal Register. Once it's in the register, it's in effect.
Go to the first document below to read all about it, and to get the link to
the Federal Register.
In subsequent newsletters I hope to have information about efforts to stop
this perfidy, or at least ways that the public can protest it. Stay tuned for
I don't pretend to be a legal expert, but it seems to me this regulation
raises some serious Constitutional issues. Article I, Section 8 of the U.S.
Constitution states that Congress shall have the power to "establish an
uniform Rule of Naturalization." Isn't the action of the DHS, which is part of
the executive branch, trampling over the jurisdiction of the legislative?
Yesterday I talked on the George Putnam radio show about the negative impact
of OPT. Of course that was before I knew Chertoff had already signed it into
law. You can listen by going to this webpage, and looking at the first Putnam
[Federal Register: April 8, 2008 (Volume 73, Number 68)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[DHS No. ICEB-2008-0002; ICE No. 2124-08] RIN 1653-AA56
Extending Period of Optional Practical Training by 17 Months for
F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for
All F-1 Students With Pending H-1B Petitions
AGENCY: U.S. Immigration and Customs Enforcement, U.S. Citizenship and
Immigration Services; DHS.
ACTION: Interim final rule with request for comments.
SUMMARY: Currently, foreign students in F-1 nonimmigrant status who have been
enrolled on a full-time basis for at least one full academic year in a
college, university, conservatory, or seminary certified by U.S. Immigration
and Custom Enforcement's (ICE's) Student and Exchange Visitor Program (SEVP)
are eligible for 12 months of optional practical training (OPT) to work for a
U.S. employer in a job directly related to the student's major area of study.
This interim final rule extends the maximum period of OPT from 12 months to 29
months for F-1 students who have completed a science, technology, engineering,
(STEM) degree and accept employment with employers enrolled in U.S.
Citizenship and Immigration Services' (USCIS') E-Verify employment
verification program. This interim rule requires F-1 students with an approved
OPT extension to report changes in the student's name or address and changes
in the employer's name or address as well as periodically verify the accuracy
of this reporting information. The rule also requires the employers of F-1
students with an extension of post-completion OPT authorization to report to
the student's designated school official (DSO) within 48 hours after the OPT
student has been terminated from, or otherwise leaves, his or her employment
with that employer prior to end of the authorized period of OPT.
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
DHS Announces Interim Final Rule to Extend OPT by 17 Months for Certain
Students with Technical Degrees and Extend OPT through October 1 for Students
with Pending or Approved Petitions for Change of Status to H-1B
April 7, 2008 - Friday the U.S. Department of Homeland Security ("DHS")
released an interim final rule designed to extend the period of Optional
Practical Training ("OPT") for certain students currently in F-1 status in the
United States. The proposal contains two different OPT extensions, including
one provision designed to give certain F-1 students with degrees in science,
technology, engineering, or mathematics ("STEM degrees") an additional 17
months of work authorization and another provision designed to ensure that
those students currently working with OPT whose H-1B petitions are selected
for adjudication will receive an automatic extension of F-1 status to avoid
any status gaps prior to the October 1 effective date on approved, cap-subject
The interim rule will not be effective until it is published in the Federal
Register. Publication of the rule is expected to occur on April 8, 2008.
OPT extensions for students with STEM degrees: DHS has announced that the OPT
expansion is geared toward meeting current U.S. labor shortages in various
scientific and technical fields. With respect to students with STEM degrees,
DHS is extending the period of OPT eligibility from 12 to 29 months if the
students work for employers enrolled in the federal E-Verify program. Students
may request the extension through the Designated Student Officer ("DSO") for
their school. Qualifying degrees include U.S.
bachelors, masters, or doctorate degrees in actuarial science, computer
science, engineering, engineering technologies, biological and biomedical
sciences, mathematics, statistics, military technology, physical sciences,
science technologies, and medical sciences. A complete list of STEM degrees
and exceptions can be found on the Immigration and Customs Enforcement website
Application requirements: If a student requests an extension and the DSO
officer recommends the extension, the student must then file an application
for a work permit on the Form I-765. A student who has properly filed a Form
I-765 prior to completing his/her initial 12 months of OPT will then be
authorized to work for an additional 180 days from the expiration of the
original OPT period if the application for an extension of the work
authorization is still pending.
Employer requirements related to expanded OPT eligibility: The new interim
rule also encourages use of the federal E-Verify program by requiring students
to work for E-Verify participants in order to qualify for the extension. An
internet-based system operated by DHS in partnership with the Social Security
Administration, E-Verify allows participating employers to electronically
verify the employment eligibility of new hires. Currently, the E-Verify
program is not federally mandated, although some states require universal
participation for all employers and other states require selective
participation for employers performing work under contracts with the state.
However, through the interim rule, DHS is providing a distinct incentive to
employers who participate in the E-Verify program and the employees they hire.
The provision specifically restricts students from obtaining the additional 17
month extension where the student is not employed at the time that the
extension is sought by an employer found by U.S. Citizenship and Immigration
Services ("USCIS") to be in good standing in the E-Verify program or does not
have a qualifying job offer from such an employer.
E-Verify requirements: Employers who enroll in E-Verify are only required and
allowed to use the program to validate work authorization for new hires. As a
practical matter, students with OPT who seek STEM extensions would not be new
hires, so although the employer would be seeking the extension based on its
compliance with E-Verify, the employer would not be using the system to verify
the student s eligibility to continue working with the company. Moreover, the
employer would be required to use E-Verify for all of its new hires, not just
students employed with the company through a grant of OPT. Additionally,
although the rule does not explicitly address this issue, it appears that if
an employer operates in a number of states but only uses E-Verify in certain
select states, the employer would be required to use E-Verify in any state
where it intends to employ students seeking STEM extensions.
Student requirements related to expanded OPT eligibility: A student
participating in the program must report to his/her school s DSO within
48 hours if the student is terminated from or otherwise leaves his/her
qualifying employment prior to the end of the authorized OPT period. The
student must also report any of the following to the DSO: (1) name change,
(2) change of residential or mailing address, (3) change of employer, and
(4) change of address for the student s employer. In addition, qualified
students will be required to report to the DSO every six months to verify this
basic information during the extension period. Likewise, employers will be
required to report when students under this program leave or are terminated
from OPT employment. Employers are also expected to report these changes to
the student s DSO within 48 hours.
H-1B cap extensions for students currently on OPT who are selected for H-1B
petition adjudication: In addressing the "cap gap" problem, the DHS interim
rule extends F-1 status for those students who are beneficiaries of H-1B
petitions seeking a change of status that are ultimately selected for
adjudication by USCIS. Currently, many students receive OPT for a period of
12 months from the completion of their studies through the spring or summer of
the year following their graduation. Therefore, even with the 60-day grace
period that student visa holders have, which begins upon completion of any OPT
period if utilized, many students have a gap between mid-summer and October 1
when their H-1B petitions becomes effective.
Accordingly, the new DHS rule will provide for an automatic extension of
F-1 status and work authorization for those students selected for H-1B
petition processing whose employers sought a change of status. The F-1 status
and work authorization will be extended through October 1 or the ultimate
adjudication of the petition, if the petition is not adjudicated until after
October 1. The provision also extends F-1 status and work authorization for
students whose petitions are selected but denied. For students whose cases are
ultimately denied or rejected, the 60 day grace period will begin when the
denial or rejection is issued.
Limitations on student unemployment during OPT: Another significant provision
in the interim rule defines when and under what conditions F-1 students will
be considered out of status during the OPT period. For F-1 students who are
unemployed for more than 90 days in the aggregate during a 12-month period of
OPT, the student will be deemed to be out of status. For
F-1 students with STEM extensions who are unemployed for more than 120 days in
the aggregate, DHS will consider these individuals to have fallen out of
Changes to current OPT application procedures: Under this new rule, students
may apply for an initial grant of OPT during a window beginning up to 90 days
prior to the conclusion of their current program end date. The window remains
open until 60 days after the candidate graduates.
Elimination of the public comment period: Due to the stated need by DHS to
maintain skilled workers in the United States through this round of H-1B
filings, DHS is implementing this initiative as an interim final rule without
first providing notice and the opportunity for public comment under the "good
cause exception" in the Administrative Procedures Act.
For more information: USCIS has published a guide to answer some frequently
asked questions regarding the change on its web site at site at
BAL Comment: BAL supports the actions taken by DHS to eliminate gaps in status
encountered by many students changing from F-1 to H-1B status, as well as an
expansion of the period of OPT for certain highly skilled workers with
specialized scientific knowledge. Unfortunately, since the new regulation was
announced after most 2009 fiscal year H-1B cap cases were filed, some
companies and their potential future employees have already planned for a
temporary period of travel abroad in light of the prior "cap gap" many of
these students were facing. Additionally, E-Verify is a comprehensive program
that places substantial burdens on enrolled employers and may expose these
employers to certain liability, therefore, creating disincentives to some
potential new enrollees. Thus, the provisions in the interim rule do not solve
all of the labor shortage issues that face the United States at present,
although the new rule does offer some relief.
- Berry Appleman & Leiden LLP
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