Earlier this year, the United States District Court for the District of Columbia issued an order finding invalid the 2008 interim Department of Homeland Security (DHS) rule that provided for a 17-month extension of F-1 Optional Practical Training (OPT) for students with degrees in Science, Technology, Engineering, and Math, commonly referred to as “STEM extensions” or “STEM OPT” for failure to provide a notice and comment period. Recognizing, however, that immediately vacating the validity of STEM OPT would cause significant hardship to F-1 students currently working in the U.S. on STEM OPT, as well as to employers, the Court suspended the ruling from taking effect until February 12, 2016, during which time DHS was given an opportunity to comply with its notice and comment obligations.
Today, Monday, October 19th, the new proposed rule was published in the Federal Register which started the notice and comment period required as part of the regulatory process. The new rule contains many positive changes consistent with President Obama’s November 2014 Executive Action on Immigration and will help the U.S. attract students in STEM fields and remain competitive in today’s global marketplace. Stakeholders will now have an opportunity to provide feedback on the proposed rule during this comment period which ends on November 18th.
Among the most significant changes proposed by the new rule is an extension of the STEM OPT period from 17 months to 24 months. In addition, students would be eligible for a second 24-month extension of STEM OPT after earning a second degree in a STEM field at a higher educational level (e.g. Master’s and PhD). Students with time remaining in their current 17-month STEM OPT extension when the final regulation is implemented may also be able to take advantage of the extension from 17 to 24 months.
The rule will also increase oversight of the program by, among other things, requiring the implementation of formal mentoring and training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools. As was the case with the prior rule, STEM OPT would continue to be available only through employers who use E-Verify.
THINGS TO KEEP IN MIND
While the expectation is that the final rule will take effect prior to February 12, 2016, in the event this does not happen, DHS will have the ability to request an extension but will also have to decide how to address pending STEM OPT applications until a final rule is implemented.
D&S will provide further updates as well as a comprehensive overview of the new rule once the final version is implemented.