Students who are present in the U.S. on an F-1 visa have limited work authorization, which includes jobs on campus and jobs within their field of study. In some cases, F-1 students may remain in the U.S. for a job after they have completed their studies. This program, known as “optional practical training” (OPT), has been the subject of litigation, based on allegations that the Department of Homeland Security (DHS) did not follow proper rulemaking procedures when it amended the OPT rules in 2008 to allow extensions for certain people with OPT jobs. A federal judge in Washington DC vacated the amended rule in August 2015 but stayed the order for six months. In January 2016, one month before the stay was set to expire, the judge granted DHS’ request for a three-month extension to allow DHS to complete the process of amending the OPT rules again.
An F-1 student is permitted to work on campus for up to 20 hours per week while school is in session, or full-time during breaks. 8 C.F.R. § 214.2(f)(9)(i). Off-campus work authorization is possible if an F-1 student can show “severe economic hardship” and a lack of on-campus opportunities. Id. at § 214.2(f)(9)(ii). DHS may also authorize an F-1 student, once they have completed one academic year, to work off campus for “practical training” purposes for up to 12 months. The period of training may be extended for an additional 12 months when the student advances to a higher level of education.
Internships and other types of work that are part of a specific curriculum are known as “curricular practical training” (CPT). 8 C.F.R. § 214.2(f)(10)(i). Other work that is “directly related to the student’s major area of study” may qualify as OPT. Id. at § 214.2(f)(10)(ii). An F-1 student may be employed in an OPT job while enrolled in school, and for up to 14 months after completing their studies.
In 2008, DHS began the process of amending the rules governing OPT, and it published a final rule the following year. 74 Fed. Reg. 26514 (Jun. 3, 2009). The new rule allows people to obtain a 17-month extension of OPT if they have obtained a degree in a STEM field (Science, Technology, Engineering, or Mathematics) and meet certain other criteria. 8 C.F.R. §§ 214.2(f)(10)(ii)(C), 214.2(f)(11)(i)(C).
An organization representing workers in STEM fields filed suit against DHS in 2014, claiming in part that it failed to follow administrative rulemaking procedures when it enacted the 17-month extension. It also alleged that the new rule conflicted with laws governing labor certifications in the H-1B program. A federal judge partially granted the organization’s motion for summary judgment by vacating the 2009 DHS rule. It stayed this order for six months, however, to allow DHS to begin the rulemaking process again. Washington Alliance of Technology Workers v. U.S. Dept. of Homeland Security, No. 1:14-cv-00529, mem. op. (D.D.C., Aug. 12, 2015).
DHS published a new Notice of Proposed Rulemaking, this time proposing a 24-month extension for OPT students in STEM fields. 80 Fed. Reg. 63375 (Oct. 19, 2015). After receiving more than 50,000 comments from the public, DHS requested an extension of the court’s stay, which was set to expire on February 12, 2016. The court gave DHS an additional 90 days, meaning that the current OPT extension program expires in May, possibly to be replaced by a 24-month extension.
Immigration attorney Samuel C. Berger represents prospective immigrants who want to move to the New York City and Northern New Jersey areas, immigrants who have made their homes here, people petitioning for an immigrant family member, and employers seeking immigrant and nonimmigrant worker visas. To schedule a confidential consultation with a knowledgeable and skilled advocate for immigrants’ rights, contact us today online, at (201) 587-1500, or at (212) 380-8117.
More Blog Posts:
What You Should Know About Student Visas in New Jersey, New York & New Jersey Immigration Lawyer Blog, July 9, 2015
State Department May Deny Visa Renewals for Many Reasons, Including Mere Allegations of Illegal Conduct, New York & New Jersey Immigration Lawyer Blog, June 10, 2015
Controversy Surrounds the J-1 Exchange Visitor Visa “Summer Work Travel” Program, New York & New Jersey Immigration Lawyer Blog, July 5, 2012