Monthly Archives: March 2016

Despite the fuss politicians and the media make about immigration policy, they appear to have largely missed important regulatory guidance that is critical for international students pursuing a STEM course of study. I’m writing this on my blog because what is likely one of the most important stories about immigration has been written about in the National Law Review but not the New York Times or Washington Post.

Some background first. International students need a F1 visa to study in America. This typically comes with 12 months of “optional practical training”, or OPT. In the Department of Homeland Security’s wording,

OPT is a form of temporary employment available to F–1 students (except those in English language training programs) that directly relates to a student’s major area of study in the United States. A student can apply to engage in OPT during his or her academic program (‘‘pre-completion OPT’’) or after completing the academic program (‘‘post-completion OPT’’).

OPT is critical for two reasons. Foremost, because the H1B lottery typically occurs in April, before most seniors have graduated and accepted full-time positions, international students usually need 9-12 months of work authorization before their employer can sponsor them in the H1B lottery the year after. Further, students often need to apply their OPT credit to pursue internships in the US, typically a prerequisite for a full-time job.

You might observe the problem here. If you need 10 months of OPT to survive working in the country a year after graduation, you can’t intern. This isn’t always true. Students can try to receive “curricular practical training” from their school, which can be gamed to allow internships that do not count against OPT,

CPT provides a specially-designed program through which students can participate in an internship, alternative study, cooperative education, or similar programs. 52 FR 13223 (Apr. 22, 1987). Defined to also include practicums, CPT allows sponsoring employers to train F–1 students as part of the students’ established curriculum within their schools. 8 CFR 214.2(f)(10)(i). CPT must relate to and be integral to a student’s program of study. Unlike OPT and other training or employment, however, CPT can be full-time even while a student is attending school that is in session. Schools have oversight of CPT through their DSOs, who are responsible for authorizing CPT that is directly related to the student’s major area of study and reporting certain information, including the employer and location, the start and end dates, and whether the training is full-time or part time. 8 CFR 214.2(f)(10)(i)(B).

A common problem with CPT is its non-uniformity. Certain schools make it reasonably easy to check the correct boxes, by offering international students a 0.25 credit, pass/fail course that requires a joke essay. Other schools don’t allow this, or require far greater documentation from students that the internship is related to a course of study. (And what major, exactly, does consulting conform to?)

In 2008 DHS made it even easier for students who had the good luck of the State Department deeming their course of study “STEM” (and you’ll see why I joke soon) stay and work in the country. It appears (corroborated by Wikipedia) that this is a result of Bill Gates testimony to Congress, though I can’t find much information about it in major media to confirm. Regardless, in April 2008, STEM graduates were awarded 17 months of post-completion OPT in addition to the 12 they already had.

Unsurprisingly, this was met with nativist fearmongering. The Rob Sanchez, at the Center for Population Stabilization, wrote that “the search for internships just got harder” and is apparently very concerned about the privileged and subsidized group of people that are Americans with STEM degrees.

After some years of silent ado, Judge Ellen Huvelle of the US District Court of Columbia ruled that this extension was invalid as there wasn’t appropriate notice or a comment period, as result of a suit brought by the Washington Alliance of Technology Workers (a high-tech workers union, apparently) because hey, why allow competition when your salary has doubled over the past decade. You really would think that the inability for foreign workers to compete for wages on an H1B, since their entire livelihood is tied to their current employer, would be enough to satisfy nativists, but apparently not.

Huvelle gave DHS until this February to follow procedure correctly, and now enter today’s joyous news.

SUMMARY: The Department of Homeland Security (DHS) is amending its F–1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Specifically, the final rule allows such F–1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (STEM OPT extension). This 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students. The rule also improves and increases oversight over STEM OPT extensions by, among other things, requiring the implementation of formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools. As with the prior 17-month STEM OPT extension, the rule authorizes STEM OPT extensions only for students employed by employers who participate in E-Verify. The rule also includes the ‘‘Cap-Gap’’ relief first introduced in a 2008 DHS regulation for any F–1 student with a timely filed H–1B petition and request for change of status.

Of course, the “wage and other protections” can’t be any good, but there is now a clear and legal pathway for thousands of international STEM students to work in this country without fear of arbitrary deportation (until the H1B lottery, at least, but let’s not get too greedy). Plus 24 months is more than enough time to marry an American.

But the point of this post is the completely arbitrary nature of critical immigration policy. It’s not being decided or debated in the Senate. Heck, it’s not even being debated by the President’s NEC and top advisors. Rather, a small number of jokers in the Department of Homeland Security (with occasional sanction and argument from jokers at the high-tech workers unions) are setting the policy that directly frames the life of hundreds of thousands of students.

Look no further than the list of “STEM” majors eligible for the extension. Animal or horticultural science qualifies, but economics does not. Animation and special effects counts, but english does not. Digital communication & media counts, but finance and accounting do not.

Some schools are willing to help students get by the system more than others. (And this doesn’t have to do with tier or quality much, Princeton refuses its students CPT whereas Penn and Chicago do not, and so forth).

This leaves students and their employers at the whim of bureaucrats at the universities and, worse, bureaucrats in the government. This is a question of economic import for the country, and emotional consequence for its students and yet is hardly mentioned in the country’s paper of record. (But don’t worry, I’m sure the Times is busy expanding its coverage of single, old men to Long Island and Jersey City).

Maybe CNN can ask Hillary or Bernie what they think about the STEM extension; or if they even know what it is.