Published May 28, 2020

By: Richard Hanus, Esq.

Securing approval of an immigration petition filing to facilitate the employment of a foreign professional and issuance of an H-1B visa has only gotten harder over the years, especially under the current administration. But in response to lawsuits filed challenging the legality of  denials of H-1B petitions for workers assigned to 3rd party work locations, the federal government has agreed to settle the dispute and essentially give in to the principal claims the plaintiff petitioning employers asserted.   This outcome marks another victory in a series of recent court challenges to federal policy on work visa petitions.

In general, H-1B visas are available for foreign workers with a university degree or equivalent, looking to fill positions in the U.S. that typically require the attainment of such a degree and in a field related to the position at issue.  When it came to employers seeking to assign an H-1B worker to a 3rd party client site, immigration agency policy has recently been to apply the strictest of scrutiny regarding the nature of the H-1B employer/H-1B employee relationship and require employers to document in extraordinary detail a work itinerary for the entire work period being petitioned for, which typically is 3 years.

Under the terms of the settlement, previously denied petitions will be reexamined under a more relaxed standard and in keeping with the plain language of the governing statute and regulations.  The good news is that employers and their foreign worker employees obtained a just and legal result.  The bad news is that it took the commencement of litigation to make it happen.

The cases at issue are ITServe Alliance Inc. v. USCIS, case number 1:18-cv-02350, in the U.S. District Court for the District of Columbia, and Serenity Info Tech Inc. et al. v. USCIS, case number 1:20-cv-00647, in the U.S. District Court for the Northern District of Georgia.

Is Time Up for Optional Practical Training for F-1 Students ?

Yes, the current administration has on occasion talked up the attractiveness of a merit-based immigration system to replace our nation’s current system which is premised mainly on family relationships.  Overall though, the message coming out of Washington these days has been predominantly anti-immigration, and that includes legal immigration.

A recent example is news that the administration is seriously considering the elimination of a popular program, known as Optional Practical Training or OPT.  OPT allows foreign student (F-1) visa holders a chance at temporary employment authorization following graduation.  Whether completing a Associates, Bachelors, Masters, or Ph.D. program, a foreign student earning a degree in the U.S. now qualifies to be issued 12 months of employment authorization. Graduates from a STEM related program can obtain up to 36 months of employment authorization.   This period of employment authorization is crucial for these graduates to secure positions that might be a vehicle toward a long term future in the U.S., including a work visa and lawful permanent residence (green card), not to mention an opportunity to make significant contributions to our nation.   Further, the promise of such a post graduate employment opportunity has always been a huge incentive for foreign students to travel to the U.S. and enter U.S. university programs.

Much like the administration’s rationale for issuing last month’s Executive Order shutting off many avenues of U.S. immigration, the current proposal to end OPT, if implemented, will be in the name of protecting U.S. jobs and our workforce from foreign competition amid the Covid 19 pandemic and impact on the job market.  The economics of such a move has been the subject of vigorous debate, but one cannot help but feel a bit uneasy about showing the exit door to some of the world’s best and brightest university grads.  Factoring in all the variables at play, it seems our nation may very well be better off if this restrictive measure will be one this administration takes a pass on.

PUBLISHED May 28, 2020– “IMMIGRATION LAW FORUM” Copyright © 2020, By Law Offices of Richard Hanus, Chicago, Illinois