Proposed DHS Rule May Save OPT STEM Extension

Foreign national students in F-1 status are generally allowed to apply for and obtain a one-year work permit, referred to as Optional Practical Training (OPT).  Certain students degrees from U.S. universities in specific Science, Technology, Engineering and Mathematics (STEM) fields are also allowed to obtain a 17-month extension of the OPT work permit under certain circumstances.

On August 12, 2015, the U.S. District Court issued a decision in Washington Alliance of Technology Workers v. USDHS, seeking to terminate the STEM OPT extension rule unless the U.S. Department of Homeland Security (DHS) properly implements a new STEM OPT extension rule by February 12, 2016.  Following the decision in Washington Alliance of Technology Workers, DHS advised that a new STEM OPT extension rule was in the works.

DHS is scheduled to publish the proposed new rule entitled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students” on Monday, October 19, 2015.  Once published, DHS must allow a 30-day mandatory period for public comments, followed by up to a 30-day period for the agency to finalize the rule.  Only then can DHS publish the final rule.  Following the publication of the final rule, DHS must wait 60 days until the rule can become effective and be implemented.

Therefore, the timeline for publication of the new rule is tight and it will be difficult for DHS to meet the February 12, 2016 deadline.  It is likely that DHS will ask the Court in the pending lawsuit to suspend or extend the February 12 deadline and to allow the STEM OPT extension program to continue beyond the February 12 deadline, even in the absence of a revised rule.

The proposed rule would allow certain F-1 STEM students to extend their OPT period by 24 months with the appropriate mentoring and training by employers.  The proposed rule would also improve and increase oversight over OPT STEM extensions.  By increasing access to OPT for STEM students, the proposed rule would help U.S. colleges and universities remain globally competitive in attracting international students in STEM fields.  It would also reform the program to better ensure that practical training opportunities are designed to meet student needs, while requiring greater accountability of employers and students.  The proposed rule would only permit STEM OPT extensions to F-1 students with degrees from accredited schools, and whose employers are enrolled in U.S. Citizenship and Immigration Services’ E-verify employment eligibility verification program.

The proposed rule includes the following changes to the current STEM OPT process and requirements:

  1. Longer STEM extension period, increased to 24 months from 17;
  2. Modified STEM definition and categories;
  3. New requirement for employers to implement formal mentoring and training programs;
  4. Permission for students to use previously-obtained STEM degree to qualify for a STEM extension;
  5. Safeguards for U.S. workers in related fields;
  6. School accreditation requirement and employer site visits;
  7. Compliance requirements relating to unemployment;
  8. Reporting requirements for STEM OPT students;
  9. Cap-Gap extension for F-1 students with timely filed H-1B petitions;

DHS encourages comments on this proposed rule through November 18, 2015.  After review of public comments, DHS may modify the rule significantly and therefore it is uncertain what it will look like once and if finalized.  Individuals may continue to file applications for STEM OPT extensions through the current procedure and DHS will continue to process them.  It is uncertain how such applications will be treated if the February 12 deadline remains and DHS fails to pass a revised rule prior to that date, or once the final rule is implemented.  Individuals with pending or upcoming applications for STEM extensions should closely monitor this issue in the coming months.

4 Comments

  1. krishna

    If the rule doesn’t get effective by Feb 12, how does it affect the current STEM OPT Extension students who have already received their EAD cards from USCIS.

    Reply
    • Yova Borovska

      If the rule does not become effective by Feb 12, 2016, individuals with STEM OPT extensions that have already been granted may be affected, but it is unclear how and to what extent. After February 12, 2016, the current OPT STEM Extension rule will be vacated or voided. In the absence of a new rule replacing it, the basis for granted STEM OPT extensions would be invalidated and USCIS may have to revoke them. Alternatively, USCIS may choose to allow such applications to be grandfathered in, so they would not be revoked. It is very unclear what USCIS would do and how its actions may be further challenged by the Courts. Please continue to follow this issue closely. We will continue to publish updates as they become available.

      Reply
        • Yova Borovska

          Dear Chirag:
          Thank you for your comment and question. I have not seen anything published in AILA resources regarding official comments from USCIS. This may have been an unofficial communication to/from USCIS regarding the issue.
          On December 22, 2015, the government filed a motion to extend the stay of vacatur for 90 days beyond February 12, 2016. If granted, the STEM OPT process will remain in place beyond February 12, 2016, allowing the government more time to publish and implement the final new STEM OPT rule. There may also be other options, if the motion to stay the vacatur is denied. Please stay tuned for updates.
          Sincerely,
          Yova Borovska

          Reply

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