Thread: Signed behind our backs, OPT extension increases H-1B

From Rob Sanchez' Job Destruction Newsletter:

<<<<< JOB DESTRUCTION NEWSLETTER No. 1852 -- 4/08/2008 >>>>>

Michael Chertoff just signed a job destruction warrant for graduates of our
universities, and he delivered a career buster to thousands of Americans.
Haven't heard about it yet? Well read on because if the mainstream media
gets its way you won't know what hit you.

The DHS regulation to extend the Optional Practical Training (OPT) visa
goes into effect today. It was signed by Michael Chertoff on April 2. All
of this just silently happened without a vote in Congress, and without
public debate. It just happened and it appears that no politician can be
held accountable during this year's elections because it was done by
bureaucratic fiat. Convenient, huh?

Universities scored a huge victory as well as private companies who want
vast quantities of cheap, educated labor, It was a stinging blow to parents
who sacrificed to give their kids a future by paying for their educations.
Institutions of higher learning aren't the only winners either. More
students on OPTs mean that the available H-1Bs can be used for other types
of foreign workers. Effects will be felt all the way up the job food chain.


Make no mistake about it; this regulation is a huge de-facto H-1B increase.
In a sense it's worse than an H-1B increase because employers who hire
foreign students to work on OPTs have far fewer restraints than those who
hire H-1Bs. OPTs don't have protections that H-1B provides such as "good
faith efforts" to find American workers or prevailing salaries to are
supposed to keep Americans from being underbid by cheap labor.

This regulation will create a huge pool of foreign students on OPTs that
remain in in a holding pattern until they get an H-1B or green card. They
will be perpetual laborers who take scarce interships that American
students desperately need. While the foreign grads wait in line for H-1B
visas their growing numbers will be used to justify an emergency H-1B
increase. We will be barraged with media sob stories that show hard working
OPTs that are facing deportation. Can ya just picture it?

It's not just about OPTs either. Foreign students on F-1 visas live under
the fear that they will go out-of-status if they lose their job. Not any
more! They can now be unemployed for up to 4 months out of twelve and still
considered to be in-status. That gives them plenty of time to "grind with
American girls" (see previous newsletter on OPT). Now foreign students can
have it all at our expense -- educations, jobs, and vacations on the beach!

You can read the entire regulation by going to this link. It's 48 pages
long, so plan to read this one when you are going to do a long stint in the
toilet room. If you have any doubt that this is a de-facto H-1B increase,
just look at the title.

http://www.dhs.gov/xlibrary/assets/press_opt_ifr.pdf
Extending Period of Optional Practical Training by 17-Months for F-1
Nonimmigrant
Students with STEM Degrees and Expanding CapGap Relief for All F-1 Students
with
Pending H-1B Petitions

DHS NO. ICEB-2008-0002
ICE NO. 2124-08
RIN 1653-AA56


Normally when a regulation is being considered there is a period of public
comment. Government agencies do this to at least give a perception of
considering public opinion. Not this time! It was shoved down our throats
with no warning at all.

The DHS circumvented the normal procedure by declaring the extension as
vital to the public interest -- in other words a national emergency that's
so urgent it can't wait for debate. They put in on about the same level as
a dirty bomb attack! Hmmmm, come to think of it, this is a dirty bomb
attack!

NOTE: On page 23 of the 48 page document the "Administrative Procedure Act"
is evoked in order "To avoid a loss of skilled students through the next
round". What they mean is that there is a lot of foreign students who are
about to lose their OPT status because they haven't been able to get an
H-1B visa, and their employers are hopping mad about the prospect of hiring
Americans to replace them.

On that same page it says that "the delay created by the notice and comment
requirements would result in serious damage to important interests." Just
guessing, but I'll bet that all-important interest they are talking about
has more to do with what Bill Gates demanded when he went to Washington DC
than whatever is good for the public.

In case you are curious how to verify if the regulation went into effect,
you must observe the Federal Register. Once it's in the register, it's in
effect. Go to the first document below to read all about it, and to get the
link to the Federal Register.

In subsequent newsletters I hope to have information about efforts to stop
this perfidy, or at least ways that the public can protest it. Stay tuned
for more.

I don't pretend to be a legal expert, but it seems to me this regulation
raises some serious Constitutional issues. Article I, Section 8 of the U.S.
Constitution states that Congress shall have the power to "establish an
uniform Rule of Naturalization." Isn't the action of the DHS, which is part
of the executive branch, trampling over the jurisdiction of the
legislative?

Yesterday I talked on the George Putnam radio show about the negative
impact of OPT. Of course that was before I knew Chertoff had already signed
it into law. You can listen by going to this webpage, and looking at the
first Putnam sound clip:

http://www.jobdestruction.info/ShameH1B ... am_Radio_A
rchives

++++++++++++++++++++++++++++++++++++++++++++++++++ +

http://frwebgate6.access.gpo.gov/cgi-bi ... 6880211620
36+3+2+0&WAISaction=retrieve

Federal Register: April 8, 2008 -- Volume 73, Number 68
[Rules and Regulations]
[Page 18944-18956]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ap08-3]

=========================
=========================
=====================

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[DHS No. ICEB-2008-0002; ICE No. 2124-08]
RIN 1653-AA56


Extending Period of Optional Practical Training by 17 Months for
F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap
Relief for All F-1 Students With Pending H-1B Petitions

AGENCY: U.S. Immigration and Customs Enforcement, U.S. Citizenship and
Immigration Services; DHS.

ACTION: Interim final rule with request for comments.


SUMMARY: Currently, foreign students in F-1 nonimmigrant status who
have been enrolled on a full-time basis for at least one full academic
year in a college, university, conservatory, or seminary certified by
U.S. Immigration and Custom Enforcement's (ICE's) Student and Exchange
Visitor Program (SEVP) are eligible for 12 months of optional practical
training (OPT) to work for a U.S. employer in a job directly related to
the student's major area of study. This interim final rule extends the
maximum period of OPT from 12 months to 29 months for F-1 students who
have completed a science, technology, engineering, or mathematics
(STEM) degree and accept employment with employers enrolled in U.S.
Citizenship and Immigration Services' (USCIS') E-Verify employment
verification program. This interim rule requires F-1 students with an
approved OPT extension to report changes in the student's name or
address and changes in the employer's name or address as well as
periodically verify the accuracy of this reporting information. The
rule also requires the employers of F-1 students with an extension of
post-completion OPT authorization to report to the student's designated
school official (DSO) within 48 hours after the OPT student has been
terminated from, or otherwise leaves, his or her employment with that
employer prior to end of the authorized period of OPT.

This rule also ameliorates the so-called ``cap-gap'' problem by
extending the authorized period of stay for all F-1 students who have a
properly filed H-1B petition and change of status request (filed under
the cap for the next fiscal year) pending with USCIS. If USCIS approves
the H-1B petition, the students will have an extension that enables
them to remain in the United


++++++++++++++++++++++++++++++++++++++++++++++++++ +

http://www.usabal.com/news/2008/08Apr07.html

DHS Announces Interim Final Rule to Extend OPT by 17 Months for Certain
Students with Technical Degrees and Extend OPT through October 1 for
Students with Pending or Approved Petitions for Change of Status to H-1B



April 7, 2008 - Friday the U.S. Department of Homeland Security ("DHS")
released an interim final rule designed to extend the period of Optional
Practical Training ("OPT") for certain students currently in F-1 status in
the United States. The proposal contains two different OPT extensions,
including one provision designed to give certain F-1 students with degrees
in science, technology, engineering, or mathematics ("STEM degrees") an
additional 17 months of work authorization and another provision designed
to ensure that those students currently working with OPT whose H-1B
petitions are selected for adjudication will receive an automatic extension
of F-1 status to avoid any status gaps prior to the October 1 effective
date on approved, cap-subject H-1B petitions.

The interim rule will not be effective until it is published in the Federal
Register. Publication of the rule is expected to occur on April 8, 2008.

OPT extensions for students with STEM degrees: DHS has announced that the
OPT expansion is geared toward meeting current U.S. labor shortages in
various scientific and technical fields. With respect to students with STEM
degrees, DHS is extending the period of OPT eligibility from 12 to 29
months if the students work for employers enrolled in the federal E-Verify
program. Students may request the extension through the Designated Student
Officer ("DSO") for their school. Qualifying degrees include U.S.
bachelors, masters, or doctorate degrees in actuarial science, computer
science, engineering, engineering technologies, biological and biomedical
sciences, mathematics, statistics, military technology, physical sciences,
science technologies, and medical sciences. A complete list of STEM degrees
and exceptions can be found on the Immigration and Customs Enforcement
website at http://www.ice.gov/sevis.

Application requirements: If a student requests an extension and the DSO
officer recommends the extension, the student must then file an application
for a work permit on the Form I-765. A student who has properly filed a
Form I-765 prior to completing his/her initial 12 months of OPT will then
be authorized to work for an additional 180 days from the expiration of the
original OPT period if the application for an extension of the work
authorization is still pending.

Employer requirements related to expanded OPT eligibility: The new interim
rule also encourages use of the federal E-Verify program by requiring
students to work for E-Verify participants in order to qualify for the
extension. An internet-based system operated by DHS in partnership with the
Social Security Administration, E-Verify allows participating employers to
electronically verify the employment eligibility of new hires. Currently,
the E-Verify program is not federally mandated, although some states
require universal participation for all employers and other states require
selective participation for employers performing work under contracts with
the state. However, through the interim rule, DHS is providing a distinct
incentive to employers who participate in the E-Verify program and the
employees they hire. The provision specifically restricts students from
obtaining the additional 17 month extension where the student is not
employed at the time that the extension is sought by an employer found by
U.S. Citizenship and Immigration Services ("USCIS") to be in good standing
in the E-Verify program or does not have a qualifying job offer from such
an employer.

E-Verify requirements: Employers who enroll in E-Verify are only required
and allowed to use the program to validate work authorization for new
hires. As a practical matter, students with OPT who seek STEM extensions
would not be new hires, so although the employer would be seeking the
extension based on its compliance with E-Verify, the employer would not be
using the system to verify the student?s eligibility to continue working
with the company. Moreover, the employer would be required to use E-Verify
for all of its new hires, not just students employed with the company
through a grant of OPT. Additionally, although the rule does not explicitly
address this issue, it appears that if an employer operates in a number of
states but only uses E-Verify in certain select states, the employer would
be required to use E-Verify in any state where it intends to employ
students seeking STEM extensions.

Student requirements related to expanded OPT eligibility: A student
participating in the program must report to his/her school?s DSO within
48 hours if the student is terminated from or otherwise leaves his/her
qualifying employment prior to the end of the authorized OPT period. The
student must also report any of the following to the DSO: (1) name change,
(2) change of residential or mailing address, (3) change of employer, and
(4) change of address for the student?s employer. In addition, qualified
students will be required to report to the DSO every six months to verify
this basic information during the extension period. Likewise, employers
will be required to report when students under this program leave or are
terminated from OPT employment. Employers are also expected to report these
changes to the student?s DSO within 48 hours.

H-1B cap extensions for students currently on OPT who are selected for H-1B
petition adjudication: In addressing the "cap gap" problem, the DHS interim
rule extends F-1 status for those students who are beneficiaries of H-1B
petitions seeking a change of status that are ultimately selected for
adjudication by USCIS. Currently, many students receive OPT for a period of
12 months from the completion of their studies through the spring or summer
of the year following their graduation. Therefore, even with the 60-day
grace period that student visa holders have, which begins upon completion
of any OPT period if utilized, many students have a gap between mid-summer
and October 1 when their H-1B petitions becomes effective.

Accordingly, the new DHS rule will provide for an automatic extension of
F-1 status and work authorization for those students selected for H-1B
petition processing whose employers sought a change of status. The F-1
status and work authorization will be extended through October 1 or the
ultimate adjudication of the petition, if the petition is not adjudicated
until after October 1. The provision also extends F-1 status and work
authorization for students whose petitions are selected but denied. For
students whose cases are ultimately denied or rejected, the 60 day grace
period will begin when the denial or rejection is issued.

Limitations on student unemployment during OPT: Another significant
provision in the interim rule defines when and under what conditions F-1
students will be considered out of status during the OPT period. For F-1
students who are unemployed for more than 90 days in the aggregate during a
12-month period of OPT, the student will be deemed to be out of status. For
F-1 students with STEM extensions who are unemployed for more than 120 days
in the aggregate, DHS will consider these individuals to have fallen out of
status.

Changes to current OPT application procedures: Under this new rule,
students may apply for an initial grant of OPT during a window beginning up
to 90 days prior to the conclusion of their current program end date. The
window remains open until 60 days after the candidate graduates.

Elimination of the public comment period: Due to the stated need by DHS to
maintain skilled workers in the United States through this round of H-1B
filings, DHS is implementing this initiative as an interim final rule
without first providing notice and the opportunity for public comment under
the "good cause exception" in the Administrative Procedures Act.

For more information: USCIS has published a guide to answer some frequently
asked questions regarding the change on its web site at site at
http://www.uscis.gov/files/article/OPT_FAQ_4apr08.pdf.

BAL Comment: BAL supports the actions taken by DHS to eliminate gaps in
status encountered by many students changing from F-1 to H-1B status, as
well as an expansion of the period of OPT for certain highly skilled
workers with specialized scientific knowledge. Unfortunately, since the new
regulation was announced after most 2009 fiscal year H-1B cap cases were
filed, some companies and their potential future employees have already
planned for a temporary period of travel abroad in light of the prior "cap
gap" many of these students were facing. Additionally, E-Verify is a
comprehensive program that places substantial burdens on enrolled employers
and may expose these employers to certain liability, therefore, creating
disincentives to some potential new enrollees. Thus, the provisions in the
interim rule do not solve all of the labor shortage issues that face the
United States at present, although the new rule does offer some relief.


- Berry Appleman & Leiden LLP

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Newsletter Homepage:
http://www.JobDestruction.com/shameh1b/ ... onNews.htm

Pay attention America, time to clean house.

I agree... it is time to clean house

We need to send this to congress and ask since when did Chertoff get the right to make his own visa's Laws...NO you need to stop this NOW!!!!

Send to every Senator!!!!

Total Destruction of Americans!

Why even send a kid to college anymore?

Seems like a lot of lead is in order. When does this stop?
Getting all the politicians out ain't that easy when you have corrupt parties and politicians running the show. Even if we were to get them all out the new ones would be bribed and hels hostage to the CFR gang. We need to expose everything CFR and we need to run a real negetive campaign about these organisations. They are pure evil and evrything that comes out of they're mouths is totally rehearsed and within the lines of the CFR/New World Order/Global Agenda.

The only hope we have now is a Total Revolution and God.

Better get your personal protection #1 God and #2 (well you get what comes to mind when you think of protecting your family from crooks)

Slowly and deliberately this country is being GIVEN away right under our noses thanks to the CFR or global elite, or whatever you want to call them.

I have been e-mailing congress all day about this....it makes me so mad I could spit fire!!

Originally Posted by roundabout

Pay attention America, time to clean house.

Boy do I agree! It appears that our government is working for the interests of EVERYONE but Americans.

Its WAY BEYOND TIME to clean house!