News » Immigration » F1 visa students may be allowed to work in the US for 6 years after February 12, 2016

F1 visa students may be allowed to work in the US for 6 years after February 12, 2016

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Judge’s ruling paves way for executive actions within 6 months.

US-Visa

By Sujeet Rajan

Sujeet RajanNEW YORK: A ruling by a judge of the District Court in the District of Columbia has potentially paved the way for students on F1 visas graduating with certain STEM degrees to be able to get Optional Practical Training (OPT) work permits for a period as lengthy as six years, equivalent to H-1B visa holders, after February 12, 2016.

The ruling by U.S. District Court Judge Ellen Huvelle of the District of Columbia, on August 12, was a classic case of a double whammy for the Washington Alliance of Technology Workers (WATW). They actually won the lawsuit they had pursued against allowing F1 visa students graduating with STEM degrees additional OPT time – but is likely to end on a dismal note.

That’s because despite the negative ruling, the F1 students are likely to get even more time to stay on and work in the US, if the Barack Obama administration complies with their promised Executions Actions, which has been in the pipeline for implementation.

Even though the F1 students came up on the wrong end of the lawsuit, the judge’s ruling may be actually a blessing in disguise. The ruling has acted as one door closing, only for the prospect of another, better door opening in the near future; less than six months away, in fact.

The judge, in response to the WATW lawsuit to curtail an additional 17 months of OPT for F1 students who graduate with certain STEM degrees, and to limit it to just 12 months, ruled that the Department of Homeland Security (DHS) must vacate that rule which came into effect more than seven years ago, by February 12, 2016.

Related Story: 3 Indian Americans plead guilty to F-1 visa, financial aid fraud at colleges in New York and New Jersey

The judge determined that the 2008 DHS rule was deficient because the agency failed to publish the rule for a public notice and comment period as required by Federal rulemaking provisions, according to Seyfarth Shaw, a prominent law firm.

Acknowledging that immediately vacating the rule would be disruptive and harmful to the U.S. technology sector and force many foreign students to leave the U.S., the judge stayed it until February 12, 2016, a period during which DHS may submit the rule for proper public notice and comment to “cure the defect”.

At present, the OPT for international students who finish either an undergraduate or graduate program from an DHS certified educational institution in the US is either 12 months – for non-STEM (Science, Technology, Engineering, Math) related programs – or 29 months, for STEM related programs.

During this period of time, students are allowed to take up any work in their field of study and be paid for it, or not be as a trainee, as the case may. It’s also a crucial time for students who intend to stay on in the US to stake their roots, prove to be an asset at work. Their best bet is to have their company sponsor them with an H-1B visa during the OPT time-frame. If that fails, or even after the company sponsors them for an H-1B visa, but they don’t make the cut in the lottery system due to soaring H-1B visa demand, their next best alternative is to study further, stay on as a legal resident. Ultimately, to try their luck anew at another shot at a work visa.

Many students, however, are forced to go back to their country of origin; cannot afford further studies at exorbitant tuition rates. Some do end up studying further, in hopes their fortunes will change in the next round of application for a work visa. But there is no guarantee plans will work out.

Related Story: F1 visa students may be allowed to work for 6 years in the USA, like H-1B visa holders

To help the F1 students, especially those with STEM degrees, have a better shot at job employment and continue to stay on in the US, the DHS had proposed to make it a level playing field for F1 students, and give benefits startlingly equivalent to H-1B visa holders.

According to new regulations proposed by the DHS and submitted before the Senate Judiciary Committee, students with STEM degrees can stay on in the US and work for a total of six years under OPT – three years after finishing an undergraduate program, and then if need be, another three years after a graduate program.

Also, for students graduating with non-STEM U.S. degree programs, but who have an earlier STEM degree under the belt, the work period will be good for three years. For example, a student who did an undergraduate program in IT or Physics, and then goes for an MBA, the student would be entitled for three years of OPT, based on his or her undergraduate STEM-related program. For non-STEM related programs, the time-frame for OPT would still remain 12 months.

Till this ruling by judge Huvelle on August 12, it was not determined as to how long DHS would take to implement the new rules for OPT, to benefit students on F1 visas. It was likely that it would not have happened before at least July of next year. There was also the possibility that with elections around the corner, and the immigration debate heating up, the executive actions may have been deferred till a new president took office, in January, 2017.

Not anymore.

The DHS would now likely keep its promise to extend OPT for students on F1 visas, after February 12, 2016. It’s also a possibility that DHS may just comply with the judge’s ruling and go ahead with the regulations required to maintain status quo. If that happens, the then present 29 months and 12 months, respectively, for F1 students to go through with their OPT, would remain in place.

It’s hard to imagine the DHS not complying with the judge’s orders, which would force tens of thousands of students currently under OPT to immediately pack their bags and leave for their home countries.

Earlier this year, the DHS started to give work permits to certain H-4 visa holders who meet eligibility requirements. Again, this was part of the executive actions by president Obama.

It’s also important to remember that competition for H-1B visas has increased a lot. In the 2016 H-1B cap which opened on April 1, 2015, the limit of 65,000 H-1B visas for skilled workers from overseas and 20,000 visas for F1 students, was reached on April 7, 2015. The USCIS received approximately 233,000 H-1B petitions, nearly three times the number of available visas.

In 2008, DHS estimated that there were approximately 70,000 foreign nationals in F-1 status on OPT, and that one third of those students had earned degrees in STEM fields. The 2008 rule was introduced by DHS to address the immediate competitive disadvantage faced by U.S. high-tech industries, and with the hope of quickly ameliorating the adverse impact on the U.S. economy.

Judge Huvelle’s ruling has also no impact at present for students who are under OPT.

F-1 students with an approved STEM OPT extension are eligible to continue working while DHS complies with the court’s ruling.  USCIS is expected to continue to adjudicate pending applications for STEM OPT extensions and accept new applications. To reinstate STEM OPT and avoid interruption of employment authorization for current F-1 STEM OPT beneficiaries, DHS is now required to publish a STEM OPT regulation through regular notice and comment procedures and take necessary steps to implement the rule prior to February 12, 2016.

If DHS does implement the six years of OPT for STEM graduates, it would be hard for even the likes of Donald Trump to complain.

Although Trump has come out swinging against expanding the H-1B work visas, and wants to curtail and shut them down, he has been in favor of helping foreign students who graduate from US universities, get job opportunities here.

(Sujeet Rajan is Editor-in-Chief, The American Bazaar)


34 thoughts on “F1 visa students may be allowed to work in the US for 6 years after February 12, 2016”

  1. An informative article. I have a question. Some universities are offering Unmanned Systems Applications undergraduate degree which is well new in this country. Can you tell me if it is a STEM major?

    Regards.

  2. how does this law apply for people who already work under OPT STEM? Do we get extension also?
    For example, my STEM ends this November, but since they’re giving extra months for STEM, do I also get those extra months?

  3. I’m Alpesh Dhandhukiya
    My qualifications B-com Second Class

    Last three years experience in Assistance Accountant

    More eduction usa Country

  4. We are a small village in India and almost all students want to work in US.
    They should make OPT upto 25 years and it will make the deal attractive. AS it will be tax free income.

  5. After reaching towards the finishing of my PhD in US I feel like the easiest and safest way to stay and live US is illegally….Nobody wants to hire legally because u r international…but if you got to NYC or California, millions of illegal immigrants are enjoying their life….I seriously thinking of moving to Canada or Australia…

  6. So firstly, every country in this world has talented people… And secondly, i think US Companies will hire top ivy league students too who are international , as well as natives, or , the universities also sponsors students in STEM for Green card, or Work Visa.

    I m gonna try out for the university sponsorship.

  7. I am working in the US as OPT but not scientific back ground. I am working on becoming CPA. I need a chance to stay, not only for STEM students…

  8. It is just 3 years OPT for a degree, which is almost the same as OPT extension.

    Also, there is a fact that companies will never choose foreign students if they can find US citizens that meet or almost meet their expectations. American students always get first priority and we just wish to have a chance to be considered, even as the last option. So if any American student still feel unfair about looking for jobs, then I would be sorry to say that you don’t deserve the job. You can’t dream about kicking out all foreign people so that companies can’t reject you even you are not almost qualified because they don’t have any other option.

  9. This article is based on mere speculation. Right now, we must just wait to first see if the 17 month rule itself stays, that’s it. Until DHS or the whitehouse have any comments.

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  10. This is one of the most baseless post I’ve read regarding this topic, with too much of a speculative tone. The most likely scenario on Feb 12 would be DHS not doing anything at all. They may challenge the decision later, but with 2016 voting share tipping either way, Obama administration won’t be pushing hard on it

  11. Don’t call it 6 years. Its 3 years after a degree.

    As of now with OPT extension, students could work for 2 year and 5 months. So even if this law passes, things remain almost the same.

  12. American students need a fair chance to compete for US jobs in our own country before opening the floodgates to citizens of other countries. Hire America First

    1. You really think they dont get first priority ?? They get first priority as there are no hassles of authorizing them like the foreign students .. get your facts right son ..before howling away

    2. US has very few talent in STEM fields. That is why they are rallying to extend the OPT period. If there is no provision like this, US economy will be severely affected, especially the Tech companies.
      And, do you think companies will prefer foreign workers over natives? Well son, you are terribly mistaken. If 2 grads, 1 foreign and 1 native with similar profiles apply for a job, they will hire the US citizen every single time.

      1. Dont be so naive to believe that the US does not have talent. The whole computer industry including languages like C/C+, artificial intelligence and various top sciences are all done by US scientists. Just take a look at the brilliant scientists involved in sending the satellite to Pluto – mostly (99%)American! Ok, when it comes to IT which is NOT innovative – there is a scarcity. That is where Indians come into the picture!! Talent is NOT IT – the most mundane topics like ERP, SAP, and junk like that. People from India get into these areas because there is nothing better to do! I remember when some politician in India said that 40% of NASA is Indian – when I actually checked, less than 1% is Indian.. So dont blather about lack of talent in US.

        1. While your proposition might have some degree of merit, using data from NASA simply does not support it. US people are working on the space projects because security clearance is usually a must. It is the fact that Americans can obtain the clearance that explains why there are 99% Americans, not because they are talent.

          1. Well, I was countering the nonsense that US does not have talent – what a joke! Can anyone even believe this nonsense? These IT peopel work in some useless areas where all are Indian which virtually requries no talent – just grunt work – and claim that US does not have talent?? It is the country with the most creative people – just look around the types of work being done (in different areas).

          2. Yes I can absolutely believe it. Not that it does not have talent, but that it does not have enough. That is why there was this huge push for STEM programs recently, it was targeted at US nationals. And as for the fact that Indians do grunt IT work and Americans do the innovative stuff.. That is plain BS. First of all, IT is innovative. Also, Indians occupy all positions in almost all niches, from computing to IT to mechanical type jobs. The company I work for has tons of Indians (and also tons of Americans) and a lot of them are program owners / department heads and even into R&D. Most of the top US companies in almost every sector is filled with Indian and immigrant talent. Check your facts. Where you may not find a lot of Indians is in McDonald’s, preparing burgers.. A lot of your creative people are immigrants and a large chunk of them are Indians (and Chinese). Indians and other immigrants also score as much or better than their US counterparts in colleges.. Tons of Indians do PhDs and some even become professors. As for NASA, it is more of a money sink than innovative. For the amount of spending it does, a lot of countries, including India, can produce similar quality or better products.

    3. No, No, No, you are wrong. Yes, I strongly agree that the companies should hire Americans first, and now they are actually doing this, too. Because usually foreign students need sponsorship for things like green card, which costs employers lots of money, while American students don’t. So almost every company will hire Americans first before hiring foreign students. Besides, although there is no minimum wage requirement for foreign students, they are mostly paid the same amount as American students, because foreign students pay the same or higher tuition so they cannot afford taking jobs with lower wage.

    4. No, No, you are wrong. Yes, I strongly agree that the companies should hire Americans first, and now they are actually doing this, too. Because usually foreign students need sponsorship for things like green card, which costs employers lots of money, while American students don’t. So almost every company will hire Americans first before hiring foreign students. Besides, although there is no minimum wage requirement for foreign students, they are mostly paid the same amount as American students, because foreign students pay the same or higher tuition so they cannot afford taking jobs with lower wage.

    5. No No No, you are wrong. Yes, I strongly agree that the companies should hire Americans first, and now they are actually doing this, too. Because usually foreign students need sponsorship for things like green card, which costs employers lots of money, while American students don’t. So almost every company will hire Americans first before hiring foreign students. Besides, although there is no minimum wage requirement for foreign students, they are mostly paid the same amount as American students, because foreign students pay the same or higher tuition so they cannot afford taking jobs with lower wage.

    6. Of course Americans are hired first. Many jobs aren’t even open to international students and many places even when open to hiring international students are hesitant because of the financial cost of sponsoring.

      America should be grateful that even after such hostile policies deterring international students, the students are willing to go such lengths to become skilled and contributing members of the society.

    7. If USA didnt need STEM students, they would not “import” them. If students are already there, they should be able to have the same rights (work, health insurance, social security,etc) as their American colleagues.

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