We wrote in June about the lawsuit challenging the 17-month OPT extension for STEM students.  The lawsuit was brought by  the Immigration Reform Law Institute, joined by the Programmers Guild and other organizations.   The lawsuit challenged the administration’s decision to extend the work period for students under the OPT program and argued that the OPT extension is just a way to go around the H-1B cap limit.  The argument was based on the fact that the H-1B program, and its annual cap, is set by U.S. Congress and by extending the OPT by 17-month, the administration has circumvented the required process of consent by the U.S. Congress.

There is a disposition in this case favorable to the F-1 and OPT holders who may benefit from the 17-month extension. In an opinion dated August 5, 2008, the US District Court for the District of New Jersey denied the request for preliminary injunction to stop the OPT 17-month program.

An AAO decision was released recently which commented on whether it is required for a petitioner who has filed a Form I-131, application for re-entry permit to be physically in the country when the application is filed.

The answer, according to the AAO decision is that the petitioner must be physically located in the U.S. at the time the I-131 re-entry permit application is filed. While it is true that the AAO decision is based on the old rules which did not require biometrics to be taken for each re-entry permit application, it is important to understand that all re-entry permits should be filed when the petitioner is in the U.S. and that the petitioner must attend the biometric appointment or risk a denial of the application.