DHS to offer backdoor increase to H-1B visas?

Final rules from Homeland Security could be a way around H-1B visa cap

In a change to its regulations, the Department of Homeland Security (DHS) plans to extend F-1 student visas for non-nationals from 12 months to 29 months.

The ruling extends the time period for non-immigrant students graduating with technical degrees in the U.S. in the Optional Practical Training (OPT) program.

While the first condition of the rule change extends the length of stay in the U.S. for those students enrolled in a training program, the second condition could be used as a way to increase the number of technical workers in the U.S. without increasing the H-1B visa cap.

The change by the DHS states that the "rule responds to the situation in which an F-1 student's status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this problem by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions."

 The question is, once a student is notified that he or she did not receive an H-1B in the visa lottery, will they be required to leave the U.S or can they remain here for 29 months?

The DHS statement does not address this question.

If students can stay for the remaining 29 months, the rule change becomes in essence a backdoor way to increase the labor pool of temporary technical workers here in the U.S. even though it does not increase the 65,000 H-1B visa cap.

This solution could appease those high tech companies clamoring for an increase in H-1B visas without addressing the issue head on.

Here are the full conditions as set forth by Homeland Security. To be eligible for an OPT extension, an F-1 non-immigrant student must:

-- currently be participating in a 12-month period of approved post-completion OPT;

-- have successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program;

-- be working for a U.S. employer in a job directly related to the student’s major area of study;

-- be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program (E-Verify is a free, internet-based system operated in partnership with the Social Security Administration that helps employers to determine the employment eligibility of newly-hired employees); and

-- properly maintain F-1 status.