D&S Update: STEM OPT Regulation

What's Happening

Several months ago, in August of 2015, the United States District Court for the District of Columbia vacated the Department of Homeland Security's (DHS) 2008 Science, Technology, Engineering and Mathematics (STEM) optional practical training (OPT) interim final rule finding that DHS failed to comply with the Administrative Procedure Act (APA) because it lacked sufficient good cause to bypass the requirements of advance notice and an opportunity for public comment. The district court the Court suspended the ruling from taking effect until February 12, 2016, to permit DHS time to promulgate a new rule and avoid the disruptive effect of vacatur on STEM employers and STEM students.

In response to the district court's order, DHS proposed a revision on October 19, 2015, providing only a 30-day public comment period, which is close to the minimum amount of time permitted. Still, DHS received more than 50,700 comments during the public comment period and, as a result, on December 22, 2015, the Department of Justice (DOJ) asked the court to “extend the stay of vacatur for approximately ninety (90) days, through May 10, 2016, providing for approximately 30 days to complete the rulemaking and 60 days for a delayed-effective-date period, under which DHS would train agency personnel and coordinate with the regulated community.” On December 24, 2015, the district court gave the plaintiffs until January 11, 2016, to respond to DHS' request for an extension. 

What this Means

While the expectation is that the request will be granted in an effort to avoid the serious adverse impact this would have on students and employers,  if the court does not grant DHS' extension request, the current rule would expire effective February 13, 2016. If that happens, DHS has suggested that the agency may have to consider options like returning any pending STEM OPT applications and requiring that applicants refile after the effective date of a final rule.   

D&S will continue to monitor this developing situation and provide updates as they become available.

STEM OPT Extension Proposed Rule

Today, Monday, October 19th, the new proposed rule regarding STEM OPT extension was published in the Federal Register, starting 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.  

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U.S. Federal Court Order Invalidates OPT STEM Extension Rule

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.