Immigration
Foreign Students in STEM Fields Get More Time on Their F-1 OPT
Effective May 10, a new rule published by the Department of Homeland Security (DHS) will make a big difference for foreign students majoring in STEM (science, technology, engineering, mathematics) fields. In an effort to attract and retain more foreign students, DHS is permitting a 24-month extension for foreign students who have U.S. STEM degrees and are doing their Optional Practical Training (OPT) in a STEM field. The current rules allow for a 17-month extension for STEM students after their one year of OPT if their employers participate in E-Verify. While the new rule creates opportunities for foreign students, employers will have additional paperwork requirements in order for their foreign student employees to take advantage of the extension.
In addition to the two additional years of employment authorization post-graduation, STEM students will have additional opportunities to play the H-1B lottery during their 36 months of OPT. With the quota stagnant and the number of petitions rising, this is a huge benefit for foreign students. Summer STEM graduates often take advantage of OPT and are frequently sponsored by their employers for an H-1B visa in April. If they are selected, they transition into H-1B status in October. If not, they can apply for the STEM OPT extension and have two full years to work — and two additional chances to apply for the H-1B visa.
For foreign students to receive a STEM OPT extension, they will need to obtain an updated I-20 form from their Designated School Official (DSO). Students and employers will have to work together to create a formal training plan that identifies learning objectives and a plan to achieve those goals. While mandatory employer enrollment in E-Verify is a holdover from the current OPT STEM extension rule, employers now also must attest to the fact that they possess the resources to implement the training plan, that the work will be an educational benefit to the student, that no U.S. worker will be displaced, and that the student will be paid the wages and benefits comparable to other similarly situated U.S. workers employed at the work site.
The new rule also requires more oversight of the STEM OPT program. DHS will impose a basic validation requirement six months into the STEM OPT extension that will collect biographic and employment information from the foreign national. At the one-year mark, DHS expects a self-evaluation report to be drafted by the student and provided to their DSO. Any material changes must be reported immediately.
The additional rules and paperwork are a price worth paying for extended employment opportunities that benefit both students and employers. And, the extra chance to play the H-1B visa lottery is a huge collateral benefit for STEM students. It seems that DHS and the Administration are serious in their commitment to attracting and retaining foreign graduates.
‘Habitual Drunkard Ruled Invalid Basis for Denying Citizenship, But DUI Grounds for Visa Revocation
In 1956, the American Medical Association (AMA) declared alcoholism to be an illness. By 1980, the AMA started establishing policies on the “disease” theory, largely to secure third-party funding, which could only be done if alcoholism was categorized as a disease. Although the AMA’s position was solidified in 1987, a Supreme Court case the following year addressed the issue via the withholding of veterans’ benefits as a result of the veterans “own willful misconduct.” The majority opinion acknowledged the competing medical literature which refused to classify alcoholism as a disease and further held that the victim “bears … responsibility.” Within a short period of time, the American Hospital Association, the American Public Health Association, the National Association of Social Workers, and the American College of Physicians all classified alcoholism as a disease. The National Institutes of Health followed suit in 2008.
This evolution of medical attitudes concerning alcoholism has spilled over into the immigration arena, where the 1952 Immigration and Nationality Act (INA) excluded citizenship from drunkards on the basis that they lacked “good moral character.” This standard has never been updated despite several modifications to the INA, and the same standard is applied to cancellation of removal applicants, who are ineligible for that relief if shown to be a habitual drunkard. A driving under the influence (DUI), open container, minor in possession, or public intoxication arrest could lead to the charge that an individual is a habitual drunkard. Absent an alcohol-related criminal charge, the very first question on both naturalization and cancellation of removal applications concerning moral character is, “Have you ever been a habitual drunkard?” The Ninth Circuit decided it was time for the INA to catch up with medical opinion and recently held that alcoholism is a disease and, therefore, the “habitual drunkard” question is irrelevant to moral character and unconstitutional under the rational basis standard.
However, the treatment of alcoholism as a disease is a double-edged sword. As USCIS adjudicators, Immigration and Customs Enforcement (ICE) attorneys, and immigration judges in the Ninth Circuit now are being prevented from imputing drunkenness onto one’s character for a DUI, the Department of State (DOS) is revoking nonimmigrant visas for the same offense. Under the INA, the inadmissibility statutes include those who have a possible physical or mental disorder associated with harmful behavior. Due to the growing consensus that alcoholism is a disease and the acknowledgement that drunk driving is harmful behavior, DOS has determined that a DUI offense raises doubts about admissibility and has recently authorized consular officers to revoke nonimmigrant visas of visa holders with a DUI arrest that has occurred within the past five years, unless that arrest has already been addressed within the context of a visa application. This means that foreign nationals who are present in the United States on a nonimmigrant visa who are subsequently arrested for a DUI, or who previously had a DUI arrest but that information only now surfaced – information that calls into question the person’s continued eligibility for a visa – are at risk for visa revocation. Previously, there was no consequence of a DUI arrest subsequent to visa issuances until the time of the next visa application. Once revoked, the visa is not valid for future travel to the United States but it does not require immediate departure from the United States if the foreign national is currently present here. Revocation does not preclude reapplying for a new visa. During reapplication, consular officers will refer any nonimmigrant visa applicant with one alcohol-related arrest in the last five years or two or more in the last 10 years to a panel physician for a medical examination prior to visa issuance to rule out a medical ineligibility.
Dilip Patel of Shutts, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail [email protected]
