Federal Court Grants Extension of STEM OPT Program Through May 10

The existing STEM OPT regulation will remain in place while the Department of Homeland Security finalizes a new rule. In the meantime, F-1 students with a valid STEM OPT employment authorization document can continue to work and U.S. Citizenship and Immigration Services can continue to process new applications for STEM OPT.

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A federal district judge has granted the Department of Homeland Security an additional three months to finalize a new regulation for the STEM optional practical training (OPT) program, and will extend through May 10 the stay of an earlier decision to vacate the current program on procedural grounds.

The ruling means that F-1 students with a valid STEM OPT employment authorization document (EAD) can continue to work beyond February 12, 2016, the court's original deadline for a new rule. U.S. Citizenship and Immigration Services can continue to accept new applications for STEM extensions of OPT and approve them for the full 17 months allowed by existing regulations.

The extension is the latest development in Washington Alliance of Technology Workers v. DHS (WashTech), the federal lawsuit challenging the validity of the STEM OPT program. In August 2015, the court ruled that DHS had the authority to create the program but failed to meet its notice and comment obligations when it published the original STEM OPT regulation in 2008. The court vacated the 2008 regulation but stayed its ruling until February 12, 2016. The purpose of the stay was to give DHS time to meet its procedural obligations and to minimize hardship to F-1 students and employers.

DHS issued a proposed replacement rule in October. After receiving more than 50,000 public comments, it asked the court for more time to review the feedback and finalize the new rule. In deciding to grant the request and extend the stay, the court held that "the equities that warranted a stay in the first place-undue hardship to STEM OPT participants and employers-remain the same. The significance of that hardship cannot be overstated." Meanwhile, WashTech continues to pursue an appeal of the August decision.

What the Extension of Stay Means for Employers and F-1 Students

The court decision helps ensure that the STEM program will continue without interruption until the new STEM OPT regulation is implemented. DHS is expected to publish the new rule before the May 10 deadline, with an effective date 30 days after publication.

As proposed, the replacement rule would lengthen the STEM OPT period to 24 months, from 17 months. Those who already have a STEM OPT EAD when the new rule takes effect would to be eligible for an additional seven months of work authorization. Employers would have significant new obligations under the new rule and would be subject to closer monitoring by U.S. Immigration and Customs Enforcement. The final rule could contain some modifications from the original proposal, but will remain confidential until published.

Fragomen is closely following the forthcoming STEM OPT regulation, and will issue a detailed client alert once it is made available.


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