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 provides 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.”
The rule was issued as an interim rule without a notice and comment period in order to combat issues faced by U.S. employers in the technology sector who were unable to retain skilled workers due to the unavailability of H-1B visas. However, the Court found that in implementing the rule without providing the public adequate notice of the regulation or the opportunity to provide comment, DHS failed to comply with the requirements of U.S. administrative procedures law and held that the rule was invalid as a result.
The Court, however, recognized that immediately vacating the validity of STEM OPT would be unduly harsh causing both hardship to F-1 students currently working in the U.S. on STEM OPT as well as a significant labor disruption in the technology sector. Therefore, the Court suspended the ruling from taking effect until February 12, 2016, during which time DHS must comply with its notice and comment obligations.
What this Means
The Current STEM OPT regulation will remain in effect until February 12, 2016. Therefore, F-1 students working pursuant to STEM OPT will remain authorized to work, so long as their STEM employment otherwise meets the current STEM OPT criteria, which require that (1) the STEM worker’s employment is related to their STEM degree and (2) the STEM worker’s employer is a currently-enrolled E-Verify user.
Pending additional USCIS guidance clarifying how the agency will handle current and new STEM OPT extension requests, which the agency is expected to issue in the coming weeks, the current rules of the program should remain in effect meaning that (1) USCIS should continue adjudication of currently pending STEM OPT extension applications; (2) eligible STEM grads should be able to file new STEM OPT extension requests; and (3) timely-filed STEM extension applications should allow F-1 students to remain work authorized for 180 days following the expiration of their initial F-1 OPT work authorization.
Things to Keep in Mind
DHS is expected to comply with the notice and comment requirements by the February 12, 2016 deadline. The new proposed rule that DHS will issue for notice and comment is expected to also incorporate elements of President Obama’s proposed regulation enhancing employment authorization options for F-1 students in STEM fields and strengthening the ability of employers sponsoring high-skilled worker visas to simultaneously support education and training to grow the next generation of American workers in STEM careers.
D&S continues to closely monitor developments following the District Court’s ruling and will provide timely updates as further information becomes available.