The Trump Administration is continuing its assault on outsourcing and staffing firms. The latest Administration focus is on the STEM OPT program.
In April 2018, without notice, USCIS made certain changes to its website. It declared, among other things, that a STEM OPT employer “may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer).” The surprise change sent shockwaves through the foreign-student community and the IT industry. The Small and Medium Enterprise Consortium filed suit in New Jersey federal court seeking a temporary restraining order against the enforcement of the new requirement.
Now, another group has filed suit in federal court in Texas, ITSERVE Alliance v. Nielsen, No. 18-cv-1823 (N.D. Tex. July 14, 2018), also seeking an injunction. The Alliance alleges that USCIS violated the Administrative Procedures Act (APA) by instituting the new requirement without a proper Notice-and-Comment Period. Moreover, ITSERVE alleges that USCIS is violating the law by enforcing the new requirement retroactively and denying immigration benefits to students who worked at third-party worksites while in STEM OPT. For instance, a STEM OPT student seeking a change of status to H might be denied such a change if he or she is unable to prove proper supervision during past work at a third-party location even before the publication of the new requirement on the website. When combined with other recent changes such as the new “unlawful presence” standard for students and the new guidance on initiating deportation proceedings when a case denial leaves an individual “out of status,” STEM OPT students are more at risk for deportation and bars on returning to the United States. The harm done is far-reaching. ITSERVE notes the fear that USCIS might start penalizing employers and even DSOs retroactively extinguishes the predictability that is necessary in today’s business environment.