In this edition, find the latest news on a district court upholding an extension for STEM-related Optional Practical Training, a Fifth Circuit Court of Appeals ruling declaring DACA illegal, the latest USCIS policy guidance on the EB-5 Reform and Integrity Act, and more.
Optional Practical Training, STEM Extension Upheld by Court
On October 4, 2022, the U.S. Court of Appeals for the District of Columbia affirmed the judgment of the district court sustaining the Department of Homeland Security’s (DHS) current Optional Practical Training (OPT) rule’s authorization of a limited period of post-coursework OPT, if recommended and overseen by the school and approved by DHS, for qualifying students on F-1 visas. OPT includes an extension for students in science, technology, engineering, or mathematics (STEM) fields of an additional 24 months beyond the OPT period of 12 months.
Among other things, the court held that authorizing foreign students to engage in limited periods of employment for practical training as their schools recommend according to the terms set out in the rule is a valid exercise of DHS’s authority. The court also noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.”
The court noted that more than 100,000 of the roughly 1 million international students who come to the United States complete a period of practical training.
Details:
- Washington Alliance of Technology Workers v. U.S. Dept. of Homeland Security, https://go.bal.com/e/851003/-5028-D-C–Cir–Oct–4-202-pdf/455g2k/346719091?h=17TzdAIkUvrpA8ZRp9G6svCxHnshAA0HZ5nXLVdhelI
Fifth Circuit Rules DACA is Illegal, But Remands to Lower Court to Consider Final Rule
The U.S. Court of Appeals for the Fifth Circuit ruled on October 5, 2022, that the Deferred Action for Childhood Arrivals (DACA) program is unlawful but remanded the case back to the U.S. District Court for the Southern District of Texas, ruling that the nearly 600,000 DACA recipients can maintain status while the lower court considers the effect of a DACA final rule issued by the Biden administration in August 2022, which will take effect on October 31, 2022. New applications continue to be blocked. A long-term solution would require Congress to pass legislation.
Details:
- Fifth Circuit decision. https://www.ca5.uscourts.gov/opinions/pub/21/21-40680-CV0.pdf
- U.S. Appeals Court Sends DACA Case Back to Lower Court to Consider New Rule,” Reuters, Oct. 5, 2022. https://www.reuters.com/legal/us-appeals-court-sends-daca-case-back-lower-court-consider-new-rules-2022-10-05/
- “DHS Issues Regulation to Preserve and Fortify DACA,” Dept. of Homeland Security, Aug. 24, 2022. https://www.dhs.gov/news/2022/08/24/dhs-issues-regulation-preserve-and-fortify-daca
- DHS final rule, 87 Fed. Reg. 53152 (Aug. 30, 2022). https://www.govinfo.gov/content/pkg/FR-2022-08-30/pdf/2022-18401.pdf
- Statement from USCIS Director Ur M. Jaddou, https://www.uscis.gov/newsroom/news-releases/statement-from-uscis-director-ur-m-jaddou-on-daca-ruling
USCIS Issues Policy Guidance on EB-5 Reform and Integrity Act of 2022
U.S. Citizenship and Immigration Services (USCIS) issued policy guidance related to an EB-5 immigrant investor rule that a federal court vacated on June 22, 2021. Highlights include:
- Removing the vacated provisions of the EB-5 rule;
- Adding that an applicant may file Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently with or subsequent to a Form I-526, Immigrant Petition by Standalone Investor, if an immigrant visa is immediately available;
- Revising the investment amounts and targeted employment area designation process; and
- Updating the name of Form I-526 throughout volumes 7 and 8 of the USCIS Policy Manual from “Immigrant Petition by Alien Entrepreneur” to “Immigrant Petition by Standalone Investor” and adding references to Form I-526E, Immigrant Petition by a Regional Center Investor.
Details:
- USCIS release, Oct. 11, 2022. https://www.uscis.gov/newsroom/alerts/uscis-issues-policy-guidance-on-the-eb-5-reform-and-integrity-act-of-2022-0
- EB-5 Q&A: EB-5 Reform and Integrity Act of 2022. https://bit.ly/3yIGShf
November Visa Bulletin Includes Information on Extension of Religious Workers Category, Visa Availability in Employment Second Category
The Department of State’s Visa Bulletin for November 2022 includes the following information:
EMPLOYMENT FOURTH PREFERENCE (SR) RELIGIOUS WORKERS CATEGORY EXTENDED
H.R. 6833, enacted on September 30, 2022, extended the Employment Fourth Preference Certain Religious Workers (SR) category until December 16, 2022. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight December 15, 2022. Visas issued prior to that date will be valid only until December 15, 2022, and all individuals seeking admission in the non-minister special immigrant category must be admitted (repeat admitted) into the United States no later than midnight December 15, 2022.
The SR category is subject to the same final action dates as the other Employment Fourth Preference categories per applicable foreign state of chargeability.
VISA AVAILABILITY IN THE EMPLOYMENT SECOND CATEGORY
Increased demand in the Employment Second category may necessitate the establishment of a worldwide final action date in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.
Details:
- November 2022 Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-november-2022.html
U.S. Embassy in India Announces Release of Over 100,000 Appointments for H&L Workers
On October 14, 2022, the U.S. Embassy in India announced that in response to the high-demand for employment-based visas, 100,000 appointments for temporary (H) and intracompany transferee (L) workers (H&L workers) and their families have been released.
The embassy also announced that thousands of applicants have already booked their appointments and that the wait time for both interview waiver and first-time appointments have been cut in half throughout India.
Finally, the embassy also announced that it will continue to prioritize H&L workers for visa appointments as resources allow.
Details:
- U.S. Embassy India, Oct. 14, 2022. https://twitter.com/USAndIndia/status/1580918815981871104
