It is axiomatic that President Obama does not have authority to increase the number of H-1B visas directly without Congressional approval, as pointed out by Immigration Attorney Tahmina Watson in her article: Three Ways Obama Can Take Executive Action for Business Immigration. (Immigration Daily, August 13).

However, there may be one simple step that the president could take to grant at least temporary relief to foreign students who have graduated from US universities and are adversely affected by the H-1B visa shortage. This would be to extend the length of the current 12-month post-completion practical training ("OPT") period to a total of 29 months for all F-1 graduates, not just those in the STEM (science, technology, engineering and math) fields.

There has never been any question about the executive branch's authority to grant practical training work permission to foreign students, and to determine the length of time for such permission, without the need for Congressional Approval. See: The Programmers Guild, Inc. v Chertoff. Civil Case No. 08-2666 (US District Court, District of NJ, August 5, 2008).

In that decision, the District Court denied a motion for a preliminary injunction brought by the plaintiffs, who were individuals and organizations purporting to represent US computer programmers and engineers, against the DHS for its extension of the OPT period for STEM graduates for the above 17 month period.

The court pointed out that the executive branch had changed the practical training time periods in the past, going as far back as 1947 (when the period was fixed at 18 months). The court held:

"In addition, the Plaintiffs are unlikely to succeed in their claim because the DHS had authority to promulgate the IFR [17 month STEM graduate OPT extension]. Congress granted the Secretary of the DHS statutory authority to 'establish such regulations...as he deems necessary for carrying out his authority under the provisions of [the Immigration and Nationality] Act.'...Congress also conferred regulatory authority upon the DHS to set the time period in which nonimmigrants can remain in the country. This means that the DHS is within its authority to promulgate the IFR."

The District Court also discussed the policy reasons for the STEM extension of OPT, stating:

"As discussed in the previous section, a preliminary injunction would cause extreme hardship lawfully present guest students, such as being forced out-of-status and facing deportation."

The decision continues:

"The government also has a compelling interest in being able to create necessary extensions to ease rigid time line requirements in order to maximize the efficiency of its programs. Since the federal government has the 'responsibility... to regulate immigration', it is essential to allow it a degree of flexibility to do so."

The court also raised serious doubts about whether the plaintiffs had standing to sue for an injunction even if the DHS exceeded its authority. It also found that the plaintiffs had failed to show irreparable harm from the DHS policy of allowing more foreign workers in the US through means of the 17-month OPT extension.

The District Court's subsequent dismissal of the entire complaint for lack of standing by the plaintiffs to bring the lawsuit was affirmed by the 3rd Circuit Court of Appeals in Case Number 08-4642.

Therefore, on the basis of this decision, there can be little doubt that any OPT extension that the administration might choose to grant for any class of F-1 students would be likely to be upheld in a federal court.

However, if, for policy reasons, extending OPT for an additional 17 months to all US college graduates is considered inadvisable, another option would be to extend OPT only for graduates in fields associated with "specialty occupations", i.e. those which qualify for H-1B. While this might no doubt come under criticism alleging that the president was seeking to do something indirectly which he lacks the authority to do directly, namely increase the number of H-1B visas, it would be difficult to argue with the fact that the executive does have the authority to extend OPT for any class of F-1 visas holders it chooses, and for virtually any period of time.

What are you waiting for, Mr. President?
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Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School who has been practicing employment-based and family-based immigration law for more than 30 years. His practice includes H-1B and O-1 work visas; and green cards through labor certification (PERM), extraordinary ability (EB-1) and opposite or same sex marriage, as well as other immigration and citizenship cases. His email address is algaselex@gmail.com