OPT RULE CHANGE:
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Here’s from article: Possible emergency measures include using the president’s authority under Section 212(f) of the Immigration and Nationality to block entirely, suspend or impose more stringent conditions, including new fees or salary requirements, on the entry of H-1B and L-1 (intracompany transferees) visa holders. The administration also may suspend, eliminate or restrict through regulation Optional Practical Training (OPT) and the ability of H-1B spouses to receive employment authorization documents. OPT allows international students to work in the United States, usually after graduation, and is considered essential by employers and U.S. universities to attract and retain foreign-born talent.
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William Stock of Klasko Immigration Law Partners also believes the administration may be overplaying its hand in the use of Section 212(f). “One question a court will have to answer in current challenges to the April 22, 2020, proclamation limiting the immigration of family members, and to any expansion to temporary visa holders, is whether delegating the president the power to nullify the remainder of the Immigration and Nationality Act is constitutional,” said Stock in an interview. “In reviewing the third version of the president’s first travel ban, the Supreme Court took pains to emphasize the extreme deference to presidential determinations of potential ‘detrimental’ entry that were embodied in Section 212(f).”
Stock and George Mason University law professor Ilya Somin believe judges need to address whether in giving the president the power to rewrite immigration law unilaterally Congress violated the nondelegation doctrine, which limits how much Congress can delegate its powers to the executive. “If the Supreme Court is serious about nondelegation, it will eventually have to either strike down Section 212(f), interpret it more narrowly, or create what would be an ad hoc exception to nondelegation rules for immigration policy,” said Somin.
Wasden said the president’s recent remarks on the economy also make it questionable for the administration to argue in court it needs to impose new H-1B or other rules as interim final rules. “An interim final rule on H-1B, including a change to the definition of a specialty occupation, would be hard to prove is an emergency need, which is the reason a rule would be interim final and not go through the normal notice-and-comment rulemaking process,” said Wasden. “The definition of an H-1B specialty occupation has been the same for 30 years. Why all of a sudden does it need to be changed, particularly after the president declared jobs are coming back and each month will be better than the next?”
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