Washington Alliance of Technology Workers try to overturn rule on extension of OPT.
By Sujeet Rajan
NEW YORK: As the deadline for the extension of the Optional Practical Training (OPT) for F-1 visa students looms large on May 10 – which would allow certain STEM stream students to work for as long as three years, and more – a technology workers’ union, the Washington Alliance of Technology Workers, have urged a court in Washington, DC, to reconsider that new rule by the Department of Homeland Security (DHS), and allow only those students to work on OPT who are still students, to protect American workers.
John Miano of the Immigration Reform Law Institute, representing the Washington Alliance of Technology Workers, told a three-judge panel of the Washington, DC Circuit, to keep alive their challenge to the DHS rule and prevent the new rule from going into effect on May 10.
The “central issue” in the dispute is whether the DHS can effectively “transform” the F-1 student visa program into a guest worker program, according to Law360.
“[The policy allows] aliens to work on student visas, even though they’re not students [anymore],” Miano told the panel.
Under the OPT program, some F-1 visa holders in STEM fields can temporarily work in the US, even when no longer students. The pending new rule would allow these STEM graduates to extend their initial 12-month OPT period by an extra 24 months, for a total of 36 months. They can avail of yet another 24-months of OPT if they attain another advanced degree from an accredited educational institution in the US.
Even with the pending withdrawal of an old 2008 rule, to be replaced by the new one which will take effect on May 10, the OPT program, established in 1992, would remain, Miano noted.
DHS has argued that the challenge by the tech workers’ union is moot as the new rule has different rules to it altogether, including a component for employers to provide educational training too as part of their employment offer to F-1 visa students on OPT.
The DHS attorney Leon Fresco urged the appeals court to rule that WashTech’s suit was “no longer viable.” The challenged 2008 rule will be gone in less than a week, and the 2016 rule replacing it is “substantively different, he said.
The new rule puts much more emphasis on employers to provide education for F-1 visa holders, which may obviate the harms to U.S. workers alleged by WashTech, Fresco claimed, with other criticized issues in the 2008 rule also addressed, he said, reported Law360.
Fresco also said that regardless of the outcome of this case, the Washington Alliance of Technology Workers would file a lawsuit to prevent F-1 visa students from getting any OPT.
According to Miano, however, the OPT program is incompatible with any supposed student status and underlying immigration law, and allowing it to stand could both effectively “wipe out” many protections for American workers and put the DHS and Congress at “cross-purposes,” according to Law360.
The case has come up before the panel after a district court had earlier thrown out the old 2008 rule pertaining to OPT, with U.S. District Judge Ellen S. Huvelle finding that there had been no emergency allowing the agency to skip out on the usual “notice and comment” rulemaking process.
She allowed the DHS to reissue the rule, using the proper process, keeping the rule in place in the meantime to avoid disruption. Otherwise, it would have meant that thousands of students on F-1 visa would have been in limbo, and have been forced to suddenly leave the country, without getting any OPT at all.