The American Bazaar: "F1 visa students may be allowed to work in the US for 6 years after February 12, 2016"

A District of Columbia judge recently ruled that the Department of Homeland Security (DHS) must vacate a 2008 rule that granted F-1 science, technology, engineering, and mathematics (STEM) students Optional Practical Training (OPT) extensions for seventeen months beyond the normal twelve months of OPT. Meanwhile, in an unrelated move, as part of President Obama’s executive actions the DHS has proposed regulations that would potentially allow STEM students to stay in the US for a total of six years.

The ruling on the seventeen-month STEM extensions by US District Court Judge Ellen Huvelle was partially in favor of the Washington Alliance of Technology Workers, who had pursed a case against F-1 STEM students to reduce their STEM extension to twelve months from seventeen, arguing that the STEM OPT extensions generated unfair competition by creating a cheaper category of workers. Judge Huvelle ruled that the DHS must vacate the rule since it did not provide the necessary public notice and comment.

Since invalidating the rule effective immediately would create a "major labor disruption” for technology-related industries as well as "substantial hardship" for thousands of international students, Judge Huvelle imposed a six-month stay until February 12, 2016, a move that should allow DHS to correct and implement the necessary public notice and comment.

In the end, this ruling may not have much impact because of the White House and DHS’s plans to expand and extend the OPT program for students in STEM fields. While the White House or DHS have not released further information about their plans, a letter from earlier this summer from Senator Charles Grassley, chair of the Senate Judiciary Committee, expressing concerns about the DHS plans, arguably reveals the proposed STEM changes.

Based on their briefing with Grassley, the DHS may be proposing regulations that would lengthen the OPT STEM extension period from seventeen to twenty-four months and allow students to take advantage of the STEM extension at two different times in their academic careers instead of only once, potentially “for a total of up to six years of postgraduation employment in student status[.]” STEM students could potentially be eligible for three years of OPT after undergraduate studies in a STEM field and three additional years after postgraduate studies in a STEM field.

Grassley, in his June letter to DHS Secretary Jeh Johnson, said that the proposed change to OPT STEM would permit “foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).”

"The proposed new regulations, while still being internally discussed, are irresponsible and dangerous considering the Government Accountability Office (GAO) report issued in March 2014 finding that the program was full of inefficiencies, susceptible to fraud, and that the department was not adequately overseeing it,” Grassley writes.

A spokesperson for Homeland Security's Immigration and Customs Enforcement division said in a statement in Inside Higher Ed that it could not elaborate on its OPT plans. “ICE is in the midst of drafting proposed rules for notice and public comment regarding foreign students with degrees in STEM fields from U.S. universities. Due to rule-making requirements, we cannot discuss the content of that proposed rule at this time,” the statement said.

Extending the OPT period for STEM students would be a welcome move within the international student community, the technology and science industry which employs many STEM workers, and among immigration practitioners, as the extended time would allow more opportunity to file H-1B petitions when the cap has been reached. At this point, however, we can only wait and see what if any changes will be enacted.

UPDATE DECEMBER 3, 2015: The US government has received nearly 35,000 comments on its plan to extend the OPT for STEM students from twenty-nine months to thirty-six months. The comments period closed last month. As was true with the initial ones, the majority of comments received support extending the program, which is not surprising given that as of September this year over 34,000 students were in the United States on a STEM OPT extension, many of whom would be forced to leave if the US government doesn't continue to bring the program into compliance with the law.
 

Secession 2015

Abi Classy / Tea for Two Photography

We have a lot of very talented people working at our firm. One of these is Alexis Roblan, a legal writer who is also a playwright. She is one of seven writers who worked with Brooklyn-based Exquisite Corpse Company on Secession 2015, a collaborative immersive theater event which opened this past weekend on Governors Island (where Joseph found his lost umbrellas). Taking its name and inspiration from the Vienna Secession of the early 1900s, an Austrian multi-disciplinary art movement led by Gustav Klimt, the show is a series of seven short plays (one of which is by Alexis!) inspired by six artists from that movement, woven together and performed in a house that’s been turned into an art gallery and performance space for the summer. 

What I particularly enjoyed was how each of the plays was a kind of feminist re-imagining of the period and the art movement. Alexis’s piece, “Marietta,” profiled a female artist of the era arguing with her subject, Marietta, about her place in the art movement, and humorously (and tragically) illustrated the unique “arranged marriage” she entered into as a way to maintain her artistic (and financial) independence. Other pieces explored the relationship between many of the famous artists of the day and their female “muses.” The muses—all of whom were dressed the same—guided the audience through the house (each scene performed in a different room), and even performed group musical numbers that were somber and funny all at once. I really appreciated the show’s creativity and surprising cohesion, and I highly recommend it.

Secession 2015 will be performed twice a day on Governors Island (accessible via ferry) at Nolan Park House #17 every Saturday and Sunday until September 20.

UPI: "U.S. diplomat sentenced to five years in visa scheme"

Michael Sestak, a former US Foreign Service Officer and one-time chief of the non-immigrant visa unit in Ho Chi Minh City, Vietnam, has been sentenced to five years in prison for his role in a money-for-visas scheme, which US prosecutors called “one of the largest bribery schemes involving a Foreign Service Officer in the history of the United States.” The ex-diplomat admitted to approving nearly 500 visas over a two-year period in exchange for $3 million in bribes, which he funneled through China and invested in real estate in Thailand.

Sestak, a former police officer and US Marshal, collaborated with Binh Tang Vo and his sister, Hong Vo, both US citizens living in Vietnam, and their cousin, Truc Tranh Huynh, a Vietnamese citizen, in the scheme that charged up to $70,000 per visa for applicants, even if they had been previously denied. Last month, the Justice Department announced that Binh Tang Vo was sentenced to eight years in prison plus forfeiture of nearly $5.1 million. Even with that forfeiture, millions in funds allegedly obtained through the visa bribery scheme remain unaccounted for.

Sestak is the most recent consular officer to be punished for selling visas, since the State Department started investigating and prosecuting for visa fraud in 1999. A Diplomatic Security spokesperson told Vice that as of 2013, twenty-four American employees at US Embassies and Consulates worldwide have been convicted of bribery, conflicts of interest, and visa and passport fraud, including husband-and-wife team Acey Johnson and Long Lee, who were convicted in 2003 of a visa-selling scheme at the US Embassy in Hanoi that continued in Sri Lanka, earning them $700,000.

Gale Smith of Diplomatic Security said their agents are now embedded in consular affairs departments and work with local authorities to monitor fraud and corruption. “Many US embassies now have a special program within the Regional Security Office to investigate both external and employee fraud,” she stated to Vice in an email. “This special group of investigators works alongside host-country law enforcement.”

The Simple Life

Hello, neighbor!

I visited my parents this week in Lancaster, Pennsylvania. They live right next to an Amish farm—which Protima was very excited to find out as she's thinking about joining the Amish. Only a few hours outside New York City (weekend trip!), the Amish of Lancaster are America's oldest Amish settlement. Arriving at a time when William Penn (the founder of Pennsylvania) was promoting religious and cultural freedom, the Amish are devoted to their religion, plain dress, lack of modern conveniences, and their horse and buggies. They are an important part of Lancaster County culture and the agricultural and business industries in the area. And they make amazing furniture!

Adding New Countries and Enhancing Security in the Visa Waiver Program

The popular United States Visa Waiver Program—currently used by nationals of thirty-eight countries to travel to the US—will now have increased security standards for the participating countries. The Visa Waiver Program allows citizens of designated countries to travel for business or tourism to the US without a visa for stays of up ninety days. Travelers must have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel.

In response to the growing threat from individuals who have gone to Syria and Iraq to fight for the Islamic State and other groups, and who are nationals of designated visa waiver countries (the US estimates that approximately 3,000 Europeans have traveled to Syria since the conflict began in 2011), the United States will now require that countries participating in the program make changes, most significantly the following:

• Require all passengers to use newer biometric passports that incorporate fingerprints and electronic chips that contain a photograph of the passport holder;

• Allow more American air marshals on flights to the US;

• Require use of the INTERPOL Lost and Stolen Passport Database to screen travelers as well as databases that share travel records and passenger information;

In addition, the Department of Homeland Security (DHS) will conduct reviews of all the countries participating in the waiver program to ensure they are following its requirements. If they find certain countries have weaker screening processes, there may be additional scrutiny for nationals of those countries at border crossings. 

DHS Secretary Jeh C. Johnson said in a written statement that these security enhancements are "part of this Department’s continuing assessments of our homeland security in the face of evolving threats and challenges, and our determination to stay one step ahead of those threats and challenges.”

While the DHS tightens the requirements, a bill introduced in Congress is proposing to increase the number of countries participating in the Visa Waiver Program. The bill, called the Jobs Originated Through Launching Travel Act (JOLT), had eighty-seven co-sponsors, split between forty-seven Democrats and forty Republicans at the end of July.

JOLT proposes to add Brazil, Poland, Israel, and Croatia, to the list of visa waiver countries by providing the DHS secretary the ability to expand the Visa Waiver Program to countries who failed the current “visa refusal” requirement. Currently this requirement bars countries when more than three percent of its citizens’ visa applications are denied. The bill would allow the DHS secretary to admit countries that have refusal rates as high as ten percent.

The bill would also enhance security requirements for countries participating in the program, including requiring the issuance of electronic biometric passports, although it's not clear if that would remain in the bill as the DHS is preemptively implementing this change. While this bill is being pushed by the travel industry which cites the economic advantages to increased tourism, critics may point to the fact that since 2008 the majority of new undocumented immigrants in the US initially arrived legally. The bill would also change the name of the Visa Waiver Program to the Secure Travel Partnership Program.

"Boosting our economy and improving national security are two of the most critical challenges we face as a nation and the JOLT Act addresses them both," Representative Joe Heck, who is co-sponsoring the bill with Representative Mike Quigley, said in a press release. "Expediting the visa interview process and expanding the Visa Waiver Program will bring more international travelers and tourists to destinations around our country and creates jobs."