Court Ruling Threatens Status of 50,000 Tech Visa Holders

September 14, 2015

Immigration LawAn August 12, 2015 ruling of the federal district court in the District of Columbia could result in the loss of up to 50,000 visas currently held by foreign-born workers in the American technology industry.  That action would force those technology professionals to leave the United States, returning to their home countries.  Such a result would have devastating consequences for the technology industry in the United States, and is both unfair and irresponsible.

The visas at issue are “optional practical training” (OPT) visas.  They are granted to students attending schools in the United States, and they permit those students to remain in the U.S. to work in professional training programs, even after their student visas (F-1 visas) have expired.  OPT visas provide a bridge between student visas and the formal work visas such as the H-1B visa.

Employers, including many in the technology sector, argue that OPTs are essential.  The technical training frequently required in order to bring even highly educated young workers up to speed for permanent jobs is time-consuming.  The OPT system provides the training periods necessary for sophisticated technology-based jobs.

In 2008, the U.S. Department of Homeland Security adopted a policy that extended the OPT term to a period of seventeen months from its original twelve month length, for students in the science, technology, engineering, and math fields (STEM).  A chapter of the Communications Workers of America challenged that Homeland Security action in federal district court.  In the court’s August ruling, it concluded that Homeland Security had acted improperly when it extended the OPT term.

The federal court determined that Homeland Security adopted the rule without proper notice and public comment.  The court ordered Homeland Security to conduct an appropriate notice and comment proceeding in support of the OPT extension, and the court required that the proceeding be completed by February 12, 2016.  If the process is not completed by that date, the court will revoke the OPT visas granted under the Homeland Security 2008 authorization.

Homeland Security should act promptly to resolve this issue.  The extended duration OPT visas are an extremely important aspect of the operations of the U.S. technology sector.  They provide a vital bridge between student and work visas, and they play an important role in supporting technology-based industries in the United States.

The challenge to the OPT visas was brought, in part, based on concern by some parties that the OPT system places technology professionals born outside of the United States at a competitive advantage over U.S. born professionals.  Instead, the OPT program should be viewed as a method to protect the significant investment made by commercial enterprises and the United States government in STEM education programs.

The OPT system helps to ensure that students educated through American STEM programs ultimately apply their skills and education in the United States.  Forced repatriation of OPT visa holders is unfair to the individuals involved, and it wastes the substantial U.S. resources invested in the education of those students.  The Department of Homeland Security should act immediately to satisfy the requirements of the court to ensure that extended OPT visas remain valid.