STEM OPT Extension for Foreign Students Invalidated

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F-1 visa holders who are graduates of U.S. universities can receive work authorization under the Optional Practical Training (OPT) program for a limited period of 12 months after having been enrolled in their academic program for one full academic year. A student can have 12 months of OPT each for the bachelor’s, master’s, and doctoral levels.

 

In 2008, the Department of Homeland Security (DHS) published a rule extending the post-completion OPT of F-1 students who earn a degree in science, technology, engineering, or mathematics (STEM) for an additional 17 months.

On August 12, 2015, a federal court ruling vacated the rule extending the OPT period for STEM graduates. U.S. District Judge Ellen Segal Huvelle ruled that the DHS did not comply with the Administrative Procedure Act (APA) when it issued the regulation without notice and comment.

Fortunately, the judge stayed her ruling, finding that immediately vacating the rule would create “major labor disruption” for employers as well as cause “substantial hardship” to foreign students with work authorization who would be forced “to scramble to depart the United States.”

The court, therefore, gave the DHS until February 12, 2016 to comply with the notice and comment requirement. This means that students who were granted STEM OPT extension will continue to be authorized to work. Adjudication of pending applications will also continue.

Foreign students who are eligible may still apply provided they submit their applications before February 12, 2016. Students who qualify for the additional 17 months of OPT time must be currently engaged in the 12-month period of approved post-completion OPT, must be in the fields of science, technology, engineering or mathematics (STEM) and must be employed in a business enrolled in the E-verify program. Also, the student must be maintaining F-1 status. The USCIS is expected to issue guidance in light of this ruling.

The STEM OPT extension allows F-1 visa holders who are working under the Optional Practical Training (OPT) program to remain in the U.S. and continue working until the H-1B petition filed on their behalf is approved and their status changes effective October 1st, the start of the fiscal year. 

This regulation also remedies the dilemma faced by F-1 students with OPT work authorization which ends one year after their graduation or usually in June. Under the regulation, these graduates no longer need to depart the U.S. and re-enter after a few months in time for the start of their H-1B employment.

The regulation likewise helps alleviate the problem of U.S. companies especially those with technology components who are in need of tech workers but are unable to hire eligible applicants because of the limited H-1B visa numbers each year.

The lawsuit was brought last year by the Washington Alliance of Technology workers which alleged there was no emergency tech worker shortage which justified circumventing the required notice and comment procedure. They also alleged that the DHS exceeded its authority when it created the STEM OPT program.

Although the court agreed with the plaintiffs on the procedural flaw, the court found that for years Congress recognized practical training regulations for foreign students and that the DHS interpretation in this area should be given deference. The DHS is expected to propose a rule for notice and comment before the date set by the court.

 

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)