Business Immigration Update #235

Update on Federal Lawsuit Challenging the F-1 OPT Program On November 21, 2019, over 100 public and private colleges and universities from across 29 states and the District of Columbia, filed an amicus curiae brief in defense of the Optional Practical Training (OPT) program for foreign students in the federal litigation case, Washington Alliance of Technology Workers Union vs. U.S. Department of Homeland Security before the U.S. District Court for the District of Columbia. Similarly, on November 25, 2019, over 50 businesses and 11 business associations filed an amicus curiae brief in recognition of the importance of the OPT and STEM OPT programs to the U.S. economy, stating “[c]ompanies, including amici, consistently struggle to fill STEM jobs and often face significant and persistent vacancies...Eliminating these programs would cause substantial and unnecessary hardship to amici, their employees, and the U.S. economy.” The Washington Alliance of Technology Workers (“WashTech”) - a union representing U.S. technology workers - filed a lawsuit challenging the Department of Homeland Security’s statutory authority to grant work authorization under both the 24-month STEM OPT rule and the standard 12-month post-completion OPT rule. WashTech claims that its workers suffered harm from direct competition with students engaged in OPT for jobs with U.S. employers. On November 25, 2019, the Department of Homeland Security (“DHS”) filed a motion for summary judgment to dismiss the lawsuit, arguing that WashTech lacks standing because it has not provided sufficient evidence to show that its members are currently competing with F-1 students receiving OPT. In addition, DHS argued that the OPT and STEM OPT rules are lawful and that the agency has adopted a reasonable and longstanding interpretation that the F-1 student provision allows for employment of students after graduation and during a period of practical training - “nothing in the F-1 statute prohibits a foreign student from accepting employment in connection with his or her course of study while in the United States.” A status conference before the District Court will be held on May 1, 2020. We will continue to monitor the federal litigation case and will provide an update when information becomes available.

Update on Presidential Proclamation on Health Insurance On November 26, 2019, the federal District Court in Oregon granted a preliminary injunction that prevents the government from taking any action to implement or enforce Presidential Proclamation No. 9945, “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System.” The injunction will be in place for an indefinite period of time until there is final resolution on the merits of the federal lawsuit. The District Court judge stated in his opinion that the proclamation is inconsistent with the Immigration and Nationality Act and “[i]n addition, and independently, the Proclamation was not issued under any properly delegated authority.” It is expected that the Trump Administration will file an appeal in response to the injunction. The Trump Administration’s proclamation on health insurance intends to restrict or suspend the entry of foreign nationals seeking admission as lawful permanent residents if they are unable to show that they are covered by approved health insurance within 30 days of entry, or that they possess the financial resources to pay for reasonably foreseeable medical costs. The proclamation, which was announced on October 4, 2019, was scheduled to take effect on November 3, 2019. However, one day prior to the effective date, the federal district court had issued a 28-day nationwide temporary restraining order (TRO) which blocked the Trump Administration from enforcing the proclamation.

Revision to Reciprocity Schedule for E and L Visas for French Citizens The Department of State (“DOS”) has revised the validity period for E-1 and E-2 visas for French citizens to be 25 months, effective November 12, 2019. Previously on August 29, 2019, the Department of State had decreased the validity period to 15 months. Similarly, the DOS decreased the validity for L visas to 17 months. The prior validity period for E and L visas for French citizens was 5 years. USCIS E-Verify Records Disposal On January 2, 2020, USCIS will dispose of E-Verify records that are more than 10 years old, which are those dated on or before December 31, 2009. E-Verify employers have until December 31, 2019 to download case information from the Historic Records Report if they want to retain information about these E-Verify cases.

For more information and guidance on downloading the Historic Records Report, see the USCIS fact sheet and instructions for downloading.

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