USCIS sued over OPT rule changes

The suit argues that students on the program were peppered with requests for information and denied permission to work offsite


Ritu Jha

The US Citizenship and Immigration Services has been sued for allegedly making unconstitutional changes in the “Optional Practical Training Extension for STEM Students (STEM OPT).

The suit claims that the USCIS targets students on OPT by serving them insistently with requests for information to accept their applications, hurting them and American companies as well.

The lawsuit, filed by ITServe Alliance Inc, a non-profit organization with over 1,000 consulting companies as its members, alleges that until in 2017, neither the regulation nor the summary on the DHS web page prohibited STEM OPT student professionals from working with consulting companies who work on projects located at client work site. Nor did it prohibit STEM students from learning and developing skills at the employer’s site.

The Department of Homeland published the regulatory requirements in January for OPT Stem and STEM OPT employer responsibilities.

But a few months ago, without a request for comments or notice, DHS changed the section of the web page, about employer eligibility, to say that a student receiving training at any location other than the employer’s place of business would be subject to penalties.

The rule also applies to students on online or distance learning arrangements and prohibits technology companies from placing STEM OPT students on a team working on offsite projects for a client.

“We believe that instead of following the legislative route, the agency is making rules through memos and website notifications,” Kishore Khandavalli, the advisory director at the ITServe Alliance, told indica when discussing the lawsuit filed July 14 in the US District Court for the Northern District of Texas, Dallas division.

He said the rule was unconstitutional.

Students come to the US on an F-1 visa, and after their education is complete students on STEM get an additional two years beyond the first year of OPT training.

“So far, all IT services companies like ours hire students right out of school and give them training under OPT and put them on a project, sometimes at our location and sometimes at the client’s location,” Khandavalli said.

The lawsuit states that the DHS is informing these student professionals that they have violated the terms of the STEM OPT F-1 visas and have unlawfully accepted employment if they work at a client location, or received training from someone not employed by the same employer.

“The USCIS website made a mention in the STEM OPT period, they cannot work on third-party location,” Khandavalli said and added, “It hurts our businesses, economy, and our client.”

“We content that USCIS did not follow the proper process in making that memo. The argument is that they take the memo down from their website,” he said.

Khandavalli said ITServe made no request to the DHS before filing the lawsuit.

When asked did they made a request before filing the case, said, “We did not write any letter, but filed the lawsuit. Also, the USCIS has been sending RFEs to OPT students asking why they worked at the third party location.”

Khandavalli said the students were being sent RFEs asking why they had worked offsite two years ago when the official website with the details was updated three months ago.

“Since last year, this administration has been going really aggressively in curtailing our ability to do business,” he said and added, “We are all US-based companies and all the jobs stay in us. We don’t outsource. Our members’ businesses are worth anywhere between $2 million to $100 million.”

He claims the DHS’s retroactive enforcement of this requirement is in violation of the US Constitution, the Administrative Procedure Act, and the Immigration and Nationality Act.

The court document states that DHS has control over DSOs (Designated School Official) participation in the STEM OPT program and enforcement of requirements. Failure of a school to follow the rules will result in it being debarred from the SEVIS program. So information technology employers who previously hired student professionals on F-1 visas to work on information technology projects at a client’s location are now prohibited from hiring STEM OPT, students.

According to a Pew Research Center analysis, US Immigration and Customs Enforcement (ICE) actions against OPT students are increasing in number.

Nearly 1.5 million students were on OPT between 2004 and 2016, with 53 percent of the foreign graduates being approved for employment specialized in science, technology, engineering and mathematics (STEM) fields.

The research shows that OPT approvals surpassed H1B visa approvals in 2010, 2014, 2015 and 2016. By the end of the 2004-2016 period, there were 1,474,000 OPT approvals and 1,473,000 initial H-1B visa approvals.

Ritu Jha

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