Computerworld | A federal judge made a ruling this week that could force tens of thousands of foreign workers, many of whom are employed at tech companies on student visas, to return to their home countries early next year.
This ruling, released Wednesday by U.S. District Court Judge Ellen Huvelle in Washington, found that the government erred by not seeking public comment when it extended the 12-month Optional Practical Training (OPT) program to 29 months for STEM (science, technology, engineering and math) students. The OPT program allows someone to work on a student visa.
Huvelle could have invalidated the OPT extension immediately but instead gave the government six months, or until Feb. 12, 2016, to submit the OPT extension rule "for proper notice and comment."
Ian Macdonald, an immigration attorney at Greenberg Traurig, said that if the U.S. Department of Homeland Security (DHS), which overseas immigration, doesn't act to fix the problem before the court's Feb. 12 expiration, the OPT extensions "will be terminated with immediate effect and (the visa holders) will have 60 days to pack up their belongings."
DHS officials did not respond by deadline to a request for comment.
The U.S. extended the OPT program in 2008 to give STEM students more time to secure H-1B visas. The government's argument was that demand for the H-1B visa was so high that it was forced to distribute the visa by way of a lottery. This meant that if someone on a student visa failed to win a temporary work visa in the lottery, the student could be forced to leave the U.S. By extending the OPT program, student visa holders could remain in the U.S. while they tried again to gain an H-1B visa or some other means to remain in the U.S.
Critics, meanwhile, assailed the OPT extension as "a back-door H-1B increase."