USCIS defends changes in OPT rules

The agency said it aims to safeguard the immigration system and ensure US workers get the most protection


Ritu Jha


The memo that prohibits work-authorized students to take up jobs for third-party client site was carried out in response the President’s Buy American, Hire American Executive Order, according to the US Citizenship and Immigration Services (USCIS).


The Department of Homeland published the regulatory requirements in January for students on “Optional Practical Training Extension for STEM” and included employer responsibilities. The recent changes, which has badly impacted over thousands of consulting companies that hire STEM OPT students, have led to a lawsuit against the USCIS.


Michael Bars, USCIS spokesperson told indica the agency could not comment on pending litigation but did say the decision was part of a USCIS commitment to reforming employment-based immigration programs so they benefit the American people to the greatest extent possible.


“The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including a thorough review of employment-based visa programs,” Bars said. “USCIS is focused on safeguarding the integrity of our immigration system and ensuring its faithful execution so that the wages and working conditions of US workers are protected.”


According to him, this interim final rule addresses the immediate competitive disadvantage faced by American high-tech industries, and thus may quickly ameliorate some of the adverse impacts on the US economy.


The law allows an F–1 student who has a STEM degree and who is already undergoing OPT to extend that period by up to 17 months (for a maximum total period of 29 months).


The lawsuit, filed July 14 by ITServe Alliance Inc, a non-profit organization with over 1,000 consulting companies as its members, alleges that until 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 a client’s work site. Nor did it prohibit STEM students from learning and developing skills at the employer’s site.


The Department of Homeland Security (DHS) first introduced an extension of OPT for STEM graduates in 2008. So students with a STEM degree from a US institution of higher education could apply for an additional 17 months of OPT, provided that the employer for who the student hoped to work was enrolled in and remained in good standing in the E-Verify electronic employment eligibility verification program (E-Verify).


Kishore Khandavalli, the advisory director at the ITServe Alliance alleges that the USCIS has not following the rules.


“We believe that instead of following the legislative route, the agency is making rules through memos and website notifications,” Khandavalli told indica earlier.


The lawsuit filed by IT Serve Alliance in the US District Court for the Northern District of Texas, Dallas division claims that the DHS’s retroactive enforcement of this requirement violates 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. A school that fails to follow the rules may be 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.

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