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A federal judge has granted the Department of Homeland Security’s request for additional time to issue a final rule on Optional Practical Training (OPT).
DHS now has until May 10 to finalize its proposed STEM OPT regulation.
On Aug. 13, 2015, the U.S. District Court for the District of Columbia ruled that the current regulation authorizing the extension of OPT for science, technology, engineering and mathematics (STEM) students must be invalidated due to procedural deficiencies. However, the court gave DHS until Feb. 12 to issue a replacement rule. DHS requested an extension of this deadline until May 10, after receiving an unprecedented number of comments on the new rule the agency published in October.
The court granted this request over the weekend, after hearing oral arguments last week from DHS and plaintiff Washington Alliance of Technology Workers (“WashTech”), the union challenging the OPT program. By granting the extension, the court has effectively postponed its previous deadline of Feb. 12 to May 10, leaving the current rule governing the STEM OPT extension in place in the meantime.
In her opinion granting DHS’s motion, District Judge Ellen S. Huvelle stated that the concerns of “undue hardship to STEM OPT participants and employers” that initially led her to postpone invalidation of the rule “remain the same,” and that “[t]he significance of that hardship cannot be overstated.”
DHS published a proposed rule, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students” Oct. 19 and received more than 50,000 comments during the 30-day comment period that followed. The proposed rule would expand the STEM extension and create new obligations for employers.
WashTech’s legal challenges to the OPT program are still on appeal in the U.S. Court of Appeals for the D.C. Circuit.
BAL Analysis: This extension of time means that students and employers will not experience a disruption on Feb. 12 if a replacement rule is not yet finalized. Current rules governing STEM OPT will continue to remain in place as DHS works to finalize its new regulation. DHS has indicated that it plans to publish a final rule within 30 days, which will become effective 60 days after its publication. BAL is monitoring the progress of the regulation and the ongoing appeal in this case.
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U.S. Citizenship and Immigration Services has released draft policy guidance that would allow O-1 visa beneficiaries more flexibility to submit evidence that they possess extraordinary ability in their field.
O-1 visas are granted to individuals who demonstrate extraordinary ability in science, business, education, athletics or arts and have been recognized nationally or internationally for their achievements. An individual may prove eligibility by meeting certain criteria listed in the regulations or by submitting “comparable evidence” (alternative but equal to the listed criteria) when the listed criteria do not apply to his or her occupation. Under current policy, USCIS officers consider comparable evidence only after the individual establishes that the majority of the listed criteria do not readily apply to the occupation.
The draft policy guidance would allow USCIS officers to consider comparable evidence for each listed criterion that is not readily applicable to the individual’s occupation.
“The petitioner does not have to show that all or a majority of the criteria do not readily apply before comparable evidence may be considered,” the draft policy memorandum states. “The number of criteria that do not apply is irrelevant to this analysis.”
Before comparable evidence will be considered for each criterion, a petitioner must explain why a listed criterion is not readily applicable to the individual’s occupation and why the proffered evidence is “comparable.” The draft guidance also clarifies that officers will consider both the quantity and quality of evidence by first assessing whether the minimum required criteria have been met, and then assessing “all the evidence in its totality.”
The draft guidance is subject to a 30-day public comment period.
BAL Analysis: While the draft policy guidance does not change the standards of eligibility for O-1 visas, it would allow O-1 petitioners to submit comparable evidence for one or more of the criteria without having to make a threshold showing that the majority of criteria do not apply to the individual’s job. USCIS will accept comments from the public on the proposed guidance until Feb. 22, and the guidance will not go into effect until USCIS releases a final memorandum.
The Department of Homeland Security (DHS) has announced that it will give states until Jan. 22, 2018 to issue driver’s licenses that comply with the REAL ID Act before it requires residents of noncompliant states to show other forms of identification for domestic air travel.
The question of whether DHS would require other forms of ID at airports arose as the federal government moved toward the REAL ID Act’s final phase of enforcement earlier this month. Five states – Illinois, Minnesota, Missouri, New Mexico, and Washington – remain noncompliant and without an extension from the agency.
Secretary of Homeland Security Jeh C. Johnson said in a Jan. 8 statement that while the federal government is moving toward full enforcement of the law, all state-issued driver’s licenses will continue to be accepted at airports for two years.
“Right now, no individual needs to adjust travel plans, or rush out to get a new driver’s license or a passport for domestic air travel,” Johnson said. “Until January 22, 2018, residents of all states will still be able to use a state-issued driver’s license or identification card for domestic air travel.”
DHS will also continue accepting certain other forms of ID – including passports, passport cards, Global Entry cards, U.S. military IDs, and airline or airport-issued IDs – for domestic air travel.
The REAL ID Act was passed by Congress and signed by President George W. Bush in 2005. The law requires states to issue driver’s licenses that contain a machine-readable data chip or magnetic strip. To date, 22 states and the District of Columbia have come into compliance with the Act. Twenty-three have received extensions. A state-by-state breakdown on REAL ID compliance is available on this DHS website.
BAL Analysis: While DHS is moving toward fully enforcing the REAL ID Act, the announcement that it will continue to accept any state-issued driver’s licenses at airports is welcome news not only for residents of the five states subject to enforcement this month, but also for residents of the 23 states granted extensions that will expire later this year. BAL will continue following the implementation of REAL ID enforcement and will update clients if it becomes necessary for travelers to obtain alternative forms of ID before making travel plans. It does not appear this will be necessary, however, for at least two years.
The State Department and Department of Homeland Security have announced that they have begun implementing new restrictions that prevent certain travelers from using the Visa Waiver Program to travel to the U.S.
The restrictions, signed into law as part of the omnibus federal budget on Dec. 18, affect travelers who, in addition to holding nationality in a Visa Waiver Program country, hold dual nationality with Iran, Iraq, Sudan or Syria.
As of Jan. 21, travelers who currently hold an Electronic System Travel Authorization (ESTA) and who indicated dual nationality with one of the four countries on their previous application will have their ESTA automatically revoked. These individuals will be required to apply for a visa at a U.S. embassy or consulate in order to enter the U.S. A State Department spokesperson said in a press briefing that the agency is contacting those individuals by email.
The new rules also restrict travelers who have been present in one of the four countries after March 1, 2011. The Secretary of Homeland Security may grant exemptions on a case-by-case basis for those who have traveled to any of the four countries for humanitarian or journalistic work or on official duty, as well as for those who traveled to Iraq for legitimate business purposes or to Iran following the bilateral talks. The agencies indicated that they are exploring “whether and how” these exemptions could be applied to dual nationals.
Meanwhile, lawmakers have proposed legislation that would eliminate the restrictions on dual nationals. The “Equal Protection in Travel Act of 2016,” H.R. 4380, was introduced by Representatives Justin Amash (R-Mich.), John Conyers (D-Mich.), Debbie Dingell (D-Mich.), and Thomas Massie (R-Ky.) on Jan. 13. Senators Jeff Flake (R-Ariz.), Dick Durbin (D-Ill.), and Cory Booker (D-N.J.) introduced similar legislation (S.2449) this week.
BAL Analysis: Travelers who are affected by the restrictions should plan to apply for a visa at least three months in advance of travel at their nearest U.S. embassy or consulate. BAL is monitoring the possible changes to the Visa Waiver Program restrictions being considered in Congress and will provide updates on any amendments.
A federal judge will hear arguments Thursday on whether to grant the Department of Homeland Security additional time to finalize its proposed Optional Practical Training regulation.
The hearing will take place in the U.S. District Court in Washington, D.C., which issued an order Aug. 12 giving DHS until Feb. 12 to promulgate a new rule authorizing the OPT extension for science, technology, engineering, and mathematics (STEM) students. DHS proposed a new rule in October and recently filed a motion seeking an extension of the court’s deadline to May 10. The plaintiffs in the case, Washington Alliance of Technology Workers (WashTech), opposed the request and will argue that DHS should not be given more time.
At the same time, WashTech’s legal challenges to the OPT program also remain pending in the U.S. Court of Appeals for the District of Columbia Circuit.
BAL Analysis: The District Court judge will now have an opportunity to hear arguments from both sides before ruling on DHS’ request for additional time. Current rules governing the STEM extension of OPT remain in place. BAL will continue to provide updates on the ongoing litigation and the regulatory process.
The Supreme Court said Tuesday it will review a federal court injunction blocking the implementation of President Barack Obama’s programs to protect roughly 5 million undocumented immigrants from deportation.
The Court is expected to hear arguments in the case in April and issue a ruling by the end of June.
Obama announced in November 2014 that his administration intended to expand the Deferred Action for Childhood Arrivals (DACA) program and create a similar program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Under these programs, eligible applicants would be allowed to remain in the U.S. and receive work authorization. The initiatives have been put on hold, however, after a federal court sided with 26 states that sued to block their implementation.
A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld the ruling in November and the Department of Justice appealed shortly thereafter to the Supreme Court.
A Supreme Court ruling in the government’s favor would give the Obama administration a chance at implementing the two programs before Obama leaves office in 2017. The future of the programs would remain uncertain, however, as the executive actions are discretionary and could be revoked by the next president.
BAL Analysis: The Supreme Court review of the immigration case will have no effect on the administration’s immigration policies related to high-skilled workers. The consequences of the ruling will be enormous, however, for Obama’s expanded DACA and DAPA programs. The programs remain on hold pending the Court’s ruling.
U.S. Citizenship and Immigration Services has confirmed that in February it will only accept employment-based adjustment of status applications according to the Application Final Action Dates chart, rather than the Dates for Filing chart, published in the State Department’s February Visa Bulletin last week.
Employment-based immigrants must follow the Application Final Action Dates chart below to determine if they are eligible to file their adjustment of status petitions. Only applicants with priority dates earlier than the date listed in the chart will be able to file their adjustment of status applications in February. Family-based immigrants may use the Dates for Filing chart applicable to family-sponsored applicants, contained in the February Visa Bulletin.
Under a final rule that will take effect Feb. 16, highly skilled professionals from Australia, Chile and Singapore under the H-1B1 and E-3 categories will be allowed to work based on their status with a specific employer rather than having to apply separately for employment authorization. In addition, if the employer has filed to extend their status, their employment authorization with that employer will be extended for 240 days beyond the expiration of their current stay.
Additionally, the rule benefits outstanding professors and researchers in the employment-based first preference category (EB-1) by allowing them to submit expanded types of evidence to prove they are internationally recognized as outstanding in their academic fields. Currently, applicants are limited to an enumerated list of initial evidence to prove their qualifications. The rule will allow applicants to submit evidence that is comparable to accepted items on the current list.
The purpose of the rule is to remove unnecessary obstacles for highly skilled workers and to reduce disruption of the continued employment of H-1B1 and E-3 highly skilled professionals seeking extensions of status, in line with the rules for other nonimmigrant categories. The rule similarly permits continued employment while an extension request is pending for nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification. The expansion of acceptable evidence for outstanding professors and researchers in the EB-1 category harmonizes the rules among employment-based categories and provides greater flexibility for employers who are recruiting researchers in this preference category.
The Department of Homeland Security proposed the rule in May 2014. The final rule is due to be published in the Federal Register Jan. 15 and takes effect Feb. 16.
The Washington Alliance of Technology Workers (“WashTech”) has filed its response in opposition to the Department of Homeland Security’s request for an additional 90 days to finalize its regulation that allows students in science, technology, engineering, and mathematics (STEM) fields to extend their Optional Practical Training (OPT).
The existing STEM OPT rule continues to remain in place at this time.
DHS is in the process of rewriting the regulation governing the STEM OPT extension because of ongoing litigation brought by WashTech. In August, a federal judge found procedural deficiencies with the 2008 STEM OPT rule, but postponed invalidating it and gave DHS until Feb. 12, 2016 to issue a new regulation.
DHS proposed a new rule in October, but recently asked the court to extend the deadline until May 10, 2016 because of the avalanche of public comments the agency received during the comment period. DHS argued it needs an additional 90 days to finalize the rule, develop guidance, and train its officers on the policy changes.
Meanwhile, WashTech has appealed the case. One of its arguments on appeal is that the lower court should have invalidated the rule immediately, rather than postpone it until February. Now that this issue is before the appeals court, WashTech argues that the lower court does not have jurisdiction to grant even more time to DHS to finalize the rule. WashTech also asserts that DHS’ “own strategic choices” have caused the agency’s inability to finalize a rule by the deadline. The group is asking the court to deny the extension and allow the pending appeal to proceed “without further meandering or delay.”
BAL Analysis: Now that WashTech has filed its response to DHS’s motion, the judge will issue a ruling either granting or denying the government’s request for an extension of the Feb. 12 deadline. The judge would also have discretion to grant an extension for a shorter period of time than DHS requested. At this time, the existing STEM OPT regulation remains in place. BAL will provide an update regarding the ruling, and continues to monitor the ongoing appeal in this case.
IMPACT – MEDIUM
What is the change? Beginning Jan. 19, the Brazilian Consulate in New York will no longer require scheduled appointments. The consulate will switch to a first-come, first-served system for accepting visa applications.
What does the change mean? The consulate has said that it will be able to guarantee visa appointments for anyone who arrives before 10 a.m. on any given day. Officials have also said existing appointments will be honored, even after the new system goes into effect.
Background: The Brazilian Consulate in New York plans to switch to the new system Jan. 19. The consulate opens to the public at 9 a.m., and officials say they can guarantee appointments to applicants who arrive before 10 a.m. Officials also say they reserve the right to ask applicants to return the following day if there is heavy demand for visas. For the time being, the new visa application system will be implemented in New York, but not at other Brazilian consulates.
BAL Analysis: The switch may help some last-minute travelers obtain visas, but those planning on traveling to Brazil should still leave as much time as possible when applying for a visa. Processing may take longer than the posted times. Furthermore, the first-come, first-served system means that those who arrive at the consulate after 10 a.m. may be asked to return on another day if the consulate is faced with heavy visa demand.