Foreign students with temporary work permits get an extension

Jan 25, 2016

This story was originally published on January 21 and was updated on Monday, January 25 to reflect Saturday's ruling. Hear the original story above.

Thousands of foreign workers wondering if they would be forced to leave the country got a reprieve Saturday. A federal judge ruled that a program allowing foreign-born students to extend their stays in the United States to work could remain in place until May 10.

The Optional Practical Training program allows foreign students and recent graduates to gain work experience in their fields of study. Students in all majors can work for up to a year. Those with degrees in the  science, engineering, technology and mathematics, or STEM, fields can apply to work for up to 17 additional months.

Last August, a federal judge nullified the so-called STEM extension, but gave the Department of Homeland Security six months to come up with a new rule. The grace period was scheduled to expire February 12, but the government had asked for more time to wade through the more than 50,000 comments it received on its proposed new rule.

“A lot of them are doing important research projects, they’re working with grants, where it’s generally more than a one-year project,” said immigration lawyer Emily Neumann, who represents foreign workers seeking long-term visas.

The STEM extension is being challenged by a group of high-tech workers who say it takes jobs from Americans.

“This OPT extension was specifically designed to circumvent the limits on foreign workers,” said John Miano, an attorney representing the workers.

The proposed new rule would increase the STEM extension to two years beyond the initial 12-month period, but it offers some protections for American workers. Employers would have to agree not to fire or lay off any U.S. workers as a result of hiring a foreign-born worker, and would have to pay similar wages.

Those safeguards aren’t strong enough, said Miano.

“There’s no enforcement provisions whatsoever and no penalties, so if employers simply ignore them, nothing happens,” he said. 

According to the opinion written by U.S. District Judge Ellen Segal Huvelle, the government says 23,000 workers participate in the STEM extension program. Those workers have 2,300 dependents. 

"If the stay is not extended, many of these people would be adversely affected," Huvelle wrote. "And of course, the U.S. tech sector will lose employees, and U.S. educational institutions could conceivably become less attractive to foreign students."

Responding to the concerns of U.S. technology workers, Huvelle wrote: "The Court does not doubt that U.S. tech workers might feel some adverse effect from a ninety-day extension, but it has not been provided with any reliable data to support this proposition."