Biden, only days after being sworn in as the 46th US President, has brought about two positive developments in immigration law. One is a failed court challenge to STEM OPT and OPT extension and the other is the delay of the US Department of Labors (DOL) implementation of disproportionate wage hike regulations for H-1B and green petitions to May 14, 2021.
In either of the two types of OPT status, students are allowed to apply for the H-1B lottery.
Local employee organisations were of the opinion that both these programmes were beyond the authority of the government although other stakeholders including the National Association of Manufacturers and the government believed the opposite. The federal court ruled in favour of the government. The case may still be appealed but it is not likely to be reversed easily as the reasoning of the decision is believed to be sound.
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The Optional Practical Training or OPT programme allows students to work for one year provided they have finished their degrees in the US. It requires students to work in their area of study for at least 20 hours per week. Full-time employment is allowed, but not required.
The STEM (Science, Technology, Engineering, Mathematics) OPT lets graduates extend their OPT for two more years, giving them three years to work in the US.
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The DOL regulation on employment-based immigration affecting H-1B and green cards that raised the wages by close to 30% across the board was troublesome. The hike, however, would have been an impossible obstacle to remove for H-1B and green card petitions because employers could have then fallen back on certain third-party wage surveys.
The DOL has now postponed the implementation of the regulation to May 14, 2021, when the H-1B lottery times for the current year would have gone by. In respect to the same, the DOL is inviting comments from both the public and stakeholders. In case they find the regulation to be factually or legally untenable, they may revoke the regulation altogether.
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