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Court Ruling

Discussion in 'OPT changes' started by Kris143, Aug 13, 2015.

  1. Kris143

    Kris143 Junior Member

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  2. speedracer

    speedracer Guru

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    replying here as well..

    nothing official yet but here is one scenario about how bad it could be:

    Student graduates in August / Dec 2014 - his first OPT is set to expire 4Q of 2015. The student is not selected in H1b lottery and thinks he can try and apply next year.. but if the OPT expires.. no 2nd try. Pack up and Leave..

    EB2 Row who are directly applying for GC.. will have no time to go through the GC process in case of delays.. its not possible to get everything done in 12 months.. So they are screwed as well..
     
  3. speedracer

    speedracer Guru

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    The courts have given DHS till Feb to go through the rule making process / proper comment and response process, So there is a way to save it.. but not sure if DHS is agile enough to move that quickly. Only time will tell... Also not sure if in the interim - between now and Feb --- if DHS / USCIS will issue OPT extensions..
     
  4. speedracer

    speedracer Guru

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    immigration experts and seniors will be able to dissect more info from the court document and give more clarity..
     
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I've read the entire 37 page opinion. In the end, the court held that the USCIS has the authority to make rules with respect to OPT, but in this case they didn't go through proper notice and comment rulemaking. The court has given the USCIS six months to publish notice and comment rules for the 17 month STEM extension. That's it.
     
  6. Kris143

    Kris143 Junior Member

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    Ron, What do you think the possible outcome gonna be on this court ruling after 6 months
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The plaintiffs lost. All they were able to accomplish was to get the court to force the USCIS to go through notice and comment rulemaking for the 17 month OPT extension. Once the USCIS does that, it's over.
     
  8. allswell

    allswell Guru

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    So, another rule that needs to go through rule making - i see this impacting 140 ead directly.
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I doubt it. They are at different stages.
     
  10. rahulms

    rahulms New Member

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    Ron,

    Do you think this impacts folks who are currently on a 17 Month OPT extension? Will the EAD's issued remain valid till the printed expiration date? Or will the USCIS withdraw those till this gets resolved?
     
  11. s_gan

    s_gan Super Moderator

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    I seriously doubt if they will do that.
     
  12. Senram

    Senram Member

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    Also judge mentioned many points like increase of competition due to extension in the initial pages. But in the end she gave an option to create a rule making. Will USCIS consider the points raised by Judge like protection for US workers? The question is rule making will change the eligibility criteria? What will be the impact if USCIS not able to complete the rule making before FEb 2016. Everything will clear only if DHS can answer. What if DHS appeal the decision? For the plaintiffs it looks like win the war but lost the battle
     
  13. Senram

    Senram Member

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    Even Attorney Murthy feels same as me. It is uncertain until we find how DHS is going to react it. I am pretty sure they will take weeks to study judgement before taking a decision. So when they start regulation process they will left with 4 or 5 months or even less. It is difficult to complete the regulation process. And if they start current regulation of two 24 months extension they may abolish 17 month extension and we may get a gap of 6 months to 1 year. I am pretty sure all the future regulations will be challenged in the court.
    http://www.murthy.com/2015/08/13/newsflash-stem-opt-may-end/
     
  14. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The EADs will remain valid. I don't really see much changing except for the likelihood that the USCIS will now require LCAs for all forms of practical training.
     
    rahulms likes this.
  15. s_gan

    s_gan Super Moderator

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    There is a big difference between I-140 EAD and OPT extension. OPT extension is controversial because it is giving employment status to people who are otherwise in-eligible to work.
     
    rchandars likes this.
  16. Kamakazee

    Kamakazee Super Moderator

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    I think there are few things to consider in this case:
    • Since this OPT extension is specifically given to STEM graduates, the plaintiffs were able to prove that they applied for STEM jobs and many had specifically asked for OPT status. (It is written in the court opinion). Such is not the case for H4 EAD. The plaintiffs could not prove that H4s are a direct competition to them since many H4s are not in IT, or they may even choose not to work. In case of F1 OPT, all F1s are working in STEM and hence, their OPT extensions - that's the difference. In case of I-140EAD/AP, applicants are already in the labor market, they can switch jobs. It can also be argued that this rule will actually make it fair for citizens since some shady employers prefer to hire H1Bs over citizens since they will be stuck in the backlog and they will take less pay etc. Now the playing field will be level.

    • DHS admitted that the reason for increasing the OPT period is to allow STEM grads to remain in this country even if they do not get selected in the lottery and so that they can apply next year. The purpose of extending STEM OPT is just that - continue to keep STEM grads as temporary labor. But that's not what OPT is about. F1s are not dual intent visas - yet. Hence, they are supposed to return after the expiry of their OPTs. DHS openly admitted that the extension is being provided to allow STEM grads to transfer to H1Bs.

    • Finally, in case of H4EAD and I-140EAD/AP, it is being provided to a selected group of people who have significantly moved forward in their immigration process. They have shown "intent to immigrate". Such is not the case for F1 OPTS. The program is strictly for increasing a temporary labor pool with no wage determinations and no US worker protection. I think that is what DHS/USCIS will have to do in their rulemaking.

    • I also believe that this seriously hurts the chances of any other STEM OPT extensions (48 months) that the administration had planned to roll out.
    Thoughts?
     
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  17. agulv

    agulv Guru

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    It's disappointing always when STEM folks are suffering whether to get OPT extension or H1B lottery. This whole route of F-1 to H-1 to GC has become so difficult and has major impact on people's lives. We are seeing it today but we are not fighting to stop abuse of other routes exploited. Until anything serious happens to stop EB1C abuse and recapture visas we are going to have a tough ride.
     
  18. prabpra1

    prabpra1 Well-Known Member

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    Yes chances for future STEM OPT extensions look very bleak. As Ron suggested in one of his earlier posts, work around could be to implement LCA's similar to H1B. However I am not sure if DHS will be doing that via a rule , within 6 months. These things take time and DHS is too slow.

    Can't DHS appeal this decision in higher court?
     
  19. Kris143

    Kris143 Junior Member

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    Thanks Ron
     
  20. Senram

    Senram Member

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    If they want to do 48 month extension by rule making then 17 month extension may go away(why should they do rule making for both). The judgement supports the opinion of Senator Grassley. He was suggesting to do OPT extension with worker protection or do not do it. First DHS need to decide what course of action they are taking. If they plan to appeal then they may create a more uncertainity and bigger mess especially when the higher court decline to give stay for the lower court. If they consider all the points in the ruling of Judge then that means make OPT extension more restrictive. The best thing would be make the rule making just for formality without any meaningful worker protections but that will be further subject to lawsuits
     

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