'Nipped in the Bud...

How Immigration Benefits for STEM graduates may get pruned

Because highly-sought H-1B visas are limited to only 65,000 each year, many highly-educated individuals seeking to work in the U.S. do not get a chance to secure work authorization in H-1B status.

Many of these applicants are foreign graduates of U.S. colleges and universities seeking work after graduation.

The greatest challenge for most of these graduates is a matter of timing. 

Here's why:

The allotment of 65,000 H-1B visas becomes available on the first day of the federal fiscal year, October 1.   However, one cannot apply for an H-1B visa more than 6 months ahead of time.  Thus, the first day someone can apply for an H-1B visa is April 1 of that same year.

Because of the intense demand for H-1B visas, U.S. Citizenship & Immigration Services, ('USCIS') typically receives more applications for H-1B status than there are available.  A whole lot more.  In fact, this past year, in April 2015, USCIS received nearly 3 times more applications than available H-1Bs.  In the first 5 days. 

USCIS will then typically hold a 'lottery' and randomly choose which H-1B petitions it will process.

Consequently, if you haven't filed your H-1B petition by April 5th, you're out of luck.  (Of course, even those who do get their H-1B petitions filed by then still may be arbitrarily denied a chance for an H-1B visa if his or her petition is not randomly chosen during the lottery.)

For graduates of U.S. colleges and universities, this poses a huge problem since most students graduate in May or June.  By the time they graduate, the H-1B application process has already shut down.  And since you must provide evidence of your educational qualifications, (e.g., a diploma), to apply for an H-1B visa, students are typically prevented from seeking an H-1B visa until April 1 of the following year.

Foreign students typically are allowed into the U.S. to study at U.S. colleges and universities with a 'student visa' - also known as an 'F-1' visa.

The final piece of the puzzle - if you haven't already considered it - is that the F-1 visa is valid only so long as the student is in a full-time course of study at a U.S. college or university.  When the program ends, (e.g., when a student graduates), then the student's F-1 visa status expires and the student must return to his or her home country.

Fortunately, there is an Option for these students to remain in the U.S. after their graduation.  It's technically an extension of the F-1 visa that allows the graduate to gain experience working in his or her field of study for one year following graduation.  This is called Optional Practical Training, (or 'OPT'). 

With OPT, a student can remain in the U.S. long enough to have the opportunity to file an H-1B petition during the next April's filing season.

In an effort to promote the workforce of highly-skilled technical employees, particularly for the technology sector, USCIS published a regulation in 2008 that permits an additional 17-month extension of OPT for individuals who graduate with a degree in one of the STEM areas, (Science, Technology, Mathematics and Engineering).  This would ostensibly give STEM graduates two chances to file an H-1B petition.

What's the Problem?

When the Department of Homeland Security published the regulation granting an additional 17-month extension of OPT, it did so without the customary 'Notice and Comment' period required of agencies wanting to promulgate new federal regulations.  It's argument was that the need to issue the regulations was so important at that time of year that it constituted extraordinary circumstances permitting it to avoid the Notice and Comment period.

Not everyone was enamored with these new regulations.  The Washington Alliance of Technology Workers concluded that it was harmed by the regulations, so it challenged the legitimacy of the 17-month STEM OPT extension, by filing suit in the Federal District Court for the District of Columbia.

The Federal Court ultimately agreed in August 2015 that the STEM OPT 17-month extension regulations were not properly promulgated and vacated the regulations - in effect saying that they should not be given any effect.  Nipped in the bud, if you will..

However, the Court also recognized the tumultuous consequence of instantly invalidating the work authorization of thousands of students working with STEM OPT 17-month extensions, so it stayed the vacatur of the regulations (postponed its effect) until February 12, 2016.

The Court stated:

     "The Court sees no way of immediately restoring the pre-2008 status-quo without    causing substantial hardship for foreign students and a major labor disruption for the technology sector.  As such, the Court will order that the 2008 Rule - and its subsequent amendments - be vacated, but it will order that the vacatur be stayed."   


It was anticipated that this delay would give the Department of Homeland Security enough time to go through a proper Notice and Comment period to validate these regulations.  However, on December 22, 2015, the Department of Homeland Security filed a Motion with the Court requesting additional time to complete the Notice and Comment period, train and educate personnel on the regulations.  The Motion requested that the stay remain in place until May 10, 2016.

As of today, the Court has not yet ruled on the Motion to extend the stay.  However, if the Motion is not granted, foreign graduates working under a 17-month OPT STEM extension may want to be prepared for the consequences on February 13, 2016.

Stay tuned for more information as it becomes available...