Update on F-1 OPT regulation and litigation

As the deadline for the comment period on the recently proposed regulation related to the Optional Practical Training program for F-1 foreign students draws closer, employers may be interested in the following information on how to engage on the issue.

The regulation, as proposed by the Department of Homeland Security on Oct. 19, will affect U.S. companies that hire foreign students pursuant to the OPT program. As drafted, it would:

• Extend OPT for foreign students in STEM fields from 29 months to 36 months.
• Require every company to implement a mentoring and training plan for foreign students.
• Require every company to make attestations regarding wages, layoffs, and other working conditions for foreign students.
• Allow U.S. Immigration and Customs Enforcement to conduct unannounced site visits of employers.

Comments are due by midnight on Nov. 18, 2015.

Employers may engage in the following ways:

Confidential Survey – Companies are encouraged to participate in a confidential survey by the Immigration Benchmarking Association regarding the proposed changes to the OPT program. No company name or identifying information is collected or required to participate in the survey, and all answers will be aggregated.

Comment Submission – Companies may also submit comments to DHS through the online system. More than 5,900 comments have already been submitted in the first two weeks. Companies may submit a comment through this link, and may also access all comments already submitted to the government.

Meanwhile, in ongoing litigation over the OPT program, opponents of the F-1 OPT program filed an appeal Sept. 23, asking a federal appeals court to reverse a lower court’s ruling that DHS acted within its statutory authority in allowing the OPT program and questioning the standard of review the court applied. The appeal, filed with the U.S. Court of Appeals for the District of Columbia, also challenges the lower court’s decision to give DHS until Feb. 12, 2016 to issue a new regulation. Final briefs are due Feb. 10, 2016, and a decision would not be expected before spring of 2016.

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