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Court Ruling

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

  1. rahulms

    rahulms New Member

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    Thanks for the clarification Ron. Really appreciate all the support you extend to the legal immigrant community.Cheers!
     
  2. Kamakazee

    Kamakazee Super Moderator

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    I agree Ron. Here is what I see may happen: The 12 month OPT will probably remain as it is, as it is not only for STEM but for all grads to get training before they leave. Other than STEM, the other grads will not qualify for H1Bs anyway, so asking them to get LCAs does not makes sense. Someone studying journalism here can finish their Masters, do their internship at Washington Post and leave after a year. Asking them to get LCAs does not make sense as journalism does not qualify for H1B anyway.

    If a STEM grad wants to file a 17-month OPT extension or 48 month or whatever number they plan to make it, that's when an LCA will need to be approved to get the extension.

    Does this sound reasonable?
     
  3. prabpra1

    prabpra1 Well-Known Member

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    Can they argue the same for H4 EAD in regards to worker protection clause and revoke the rule?
     
  4. Kamakazee

    Kamakazee Super Moderator

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    The plaintiffs who are work in IT field find it difficult to prove that they are directly harmed by this rule. All H4s will not work in IT and some may even choose not to work. The F1 OPT ruling actually makes the H4 EAD case even weaker for the plaintiff since it has gone through the full rulemaking process.
     
  5. prabpra1

    prabpra1 Well-Known Member

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    Right, the only thing they are trying to argue on is whether DHS is interpreting the H4 law right. I read plaintiff lawyers blog. His twist to the story is this. Since Congress did not mention that H4's can work ,the law has to be interpreted that they are not allowed to work. If not Congress would have explicitly stated similar to L2.

    DHS argues that , since Congress did not explicitly state H4's cannot work, it has the authority to allow them under the broad powers given to DHS.

    I heard a motion to cross summary judgement was filed by the plaintiff, so Judge has to weigh in with her interpretation of the law. There is nothing else that is conflicting, so a trial might not be needed.
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Why should they? They won. They have to go through the regular rulemaking process, but otherwise they got what they wanted and the plaintiffs didn't.
     
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  7. Kamakazee

    Kamakazee Super Moderator

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    I sincerely hope that USCIS does not have only 5 specialized people who can work on EB immigrant rulemaking and all 5 are now working on 1615-AC05. But since F1 OPT will now have to be done by Feb 2016, they take 3 of them and put them in F1 OPT rulemaking slowing down 1615-AC05. Hoping that's not the case, but with USCIS you never know.
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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  9. Senram

    Senram Member

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    Slowly news is becoming hot. I think if they make political hot button connecting with H1b then DHS will face a problem in rule making. Stop gap arrangement for H1b start date further complicated the issue more and DHS accepted that to workaround for H1b cap they did OPT. Let us see how DHS will react in coming days. It is not as easy as to fix by rule making process. Need strongest support from WH to face political issues. But that may cost democrats if Labor Unions involve in this issue.

    http://www.computerworld.com/articl...-forced-to-leave-us-next-year-says-court.html
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    IF they don't publish new rules and IF they don't seek an extension of the order if they can't get it done in time.
     
  11. smartboy

    smartboy Senior Member

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    If its any solace, F-1 OPT is under USICE and not USCIS. So all the 5 alloted must still work on AC05/AB97 :)
     
  12. Kamakazee

    Kamakazee Super Moderator

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    As per USCIS/DHS, even going through the rulemaking process is a punishment. :)
     
  13. DonDraper

    DonDraper Guru

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    The whole idea of h1b start date on october 1st is a sham. Little does it make sense why they have that rule. Ron ?
     
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  14. Kamakazee

    Kamakazee Super Moderator

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    New fiscal year. New H1Bs lined up along with new GCs allotted for the year.
     
  15. allswell

    allswell Guru

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    the dates i see moving only till 2009 the max for FY 2016 for EB2I. Anyone think it will come to 2011?
     
  16. speedracer

    speedracer Guru

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    I hope it will pass into 2012.. but don't think it will pass anywhere close to 2010..
     
  17. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The fiscal year begins on October 1st. With it comes a new H1B quota. Employers may file petitions as early as six months before the employment start date. That's why everyone files on April 1st for October 1st start dates.
     
  18. Ron Gotcher

    Ron Gotcher Attorney at Law

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    There is no need to panic. The DHS will publish new rules within the next six months. If they get into a time crunch, they will ask the court for more time and they will get it. They will likely include any expansion that they had been planning into this new rule. As I've written previously, they will likely require LCAs for OPT (which is reasonable and long overdue).
     
  19. Kamakazee

    Kamakazee Super Moderator

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    Even if you apply for a 12 month OPT in journalism? Is it fair for someone who is doing a Masters in Journalism and wanting to do a 12 month internship at Washington Post before going back? I think the LCA should be restricted to all STEM who is seeking an extension beyond the normal 12 months. Because DHS/USCIS themselves admitted that the very purpose of increasing the OPT period is to allow them to transfer to H1B.
     
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  20. Kamakazee

    Kamakazee Super Moderator

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    They will probably need to show some progress first - like already having opened the proposed rule for comments and only the publication of final rule is left etc. I am also afraid that since the judge forced a deadline on this (we know how much USCIS loves deadlines), 1615-AC05 may take a backseat.
     

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