USCIS Dials Back New Policy Limiting STEM OPT to In-House Employment

Earlier this year, USCIS updated its STEM OPT website with a more narrow interpretation of the STEM OPT regulations, indicating that all STEM OPT training must take place on-site at the employer’s place of business, thereby limiting an employer's ability to place STEM OPT workers at third-party worksites.  However, the STEM OPT website has once again been updated and USCIS appears to have scaled back this new interpretation. The most recent update removed the the pertinent language from the earlier update which suggested that off-site placement, including placement at a client site, was prohibited. The website now clarifies that employers are not prohibited from placing F-1 workers on STEM OPT at third-party worksites provided that a bona fide employer-employee relationship exists and all other STEM OPT training obligations are met.

More specifically, the updated guidance makes clear that, where an employer and the F-1 student working pursuant to STEM OPT have a valid employer-employee relationship, and that same employer provides the practical training experience and signs the STEM training plan, third party placement would not be prohibited under the STEM OPT regulations.

Employers and employees should continue to ensure all training and reporting obligations are met and F-1 students are reminded that status violations or a failure to maintain their status will result in the accrual of Unlawful Presence under USCIS’s new policy.

DHS Releases Final STEM OPT Rule

The U.S. Department of Homeland Security (DHS) released an advance draft of its final STEM OPT rule today, March 9, 2016, which will permit certain foreign students with degrees in STEM (Science, Technology, Engineering, and Math) fields to extend their Optional Practical Training (OPT) period by 24 months.  The will go into effect on May 10, 2016,  just in time to meet the date on which the District Court’s May 10th vacatur of the prior rule will occur and avoid a gap between the regulations, which could have had a significant impact on STEM students and employers. DHS released its preview copy of the final rule this morning and the official version of the rule is set to be published in the Federal Register on Friday, March 11, 2016.

We have provided an outline of the major provisions of the new rule, which also contains additional requirements and obligations for STEM OPT students and employers.

Read More

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.  

Read More

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.