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Students can now work three years on an F-1 visa, but legal fight continues

The federal government this month officially extended the length of time someone with a STEM degree can work on a student F-1 visa from 29 months to three years.

Students are eligible to work on their F-1 visa for one year under the government's Optional Practical Training (OPT) program. But in 2008, near the end of his second term, President George W. Bush's administration made it possible for students in science, technology, engineering and math (STEM) fields to get a 17-month extension beyond the initial year.

And now, President Barack Obama has increased the STEM extension to 24 months. That change went into effect May 10.

The reason for the STEM extensions in 2008 and in 2016 are the same: Giving students more time to work using an F-1 visa means they will have a better chance of winning an H-1B visa in the oversubscribed visa lottery.

The OPT program prompted a lawsuit against the government by the Washington Alliance of Technology Workers (WashTech). It argued that the increase in STEM workers creates unfair competition for technology workers, particularly since student workers are less expensive to employ.

In extending the OPT visa, the administration imposed some news rules, including requiring that OPT worker's salary is "commensurate" with "similarly situated U.S. workers."

WashTech won a legal victory in August 2015, when a U.S. District Court judge ruled that the government erred in not seeking public comment when it extended the OPT program in 2008. Following that ruling, the government issued the new STEM rule. This time, the U.S. did post the OPT changes for public comments, and more than 40,000 people and groups responded.

The case suffered a setback earlier this month when a federal appeals court technically dismissed it because the lawsuit didn't cover the new regulations drafted by the Obama administration.  But the ruling does not foreclose WashTech's ability to update and continue the case in lower court or to file a new case.

"So far, the OPT case has been turned into something out of Bleak House," said WashTech's attorney, John Miano, in a reference to the Charles Dickens' novel of judicial dysfunction.

The only thing that appears certain is that Miano will continue his legal challenge over OPT.

"We will get a final decision on the question of whether DHS (the Departmentof Homeland Security, which has oversees immigration) can allow non-students to work on student visas someday," said Miano.

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