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You’ll Have to Wait Until May 10, 2016 for the New STEM OPT Rule

January 28, 2016
Beata Leja

Blog Week 01-28On October 19, 2015, the Department of Homeland Security (DHS) published a new proposed rule to extend an F-1 foreign student’s Optional Practical Training (OPT) work authorization for up to 24 months (beyond the initial 12 months) if the student graduates with a designated degree in science, technology, engineering or mathematics (STEM).

Background Regarding the Court Case that Led to the New Proposed Rule

The new proposed rule was published following a lawsuit filed against the DHS in March 2014, challenging the validity of the OPT program on various grounds, including whether DHS has the regulatory authority to grant additional OPT work authorization to STEM graduates.

On August 12, 2015, the U.S. District Court for the District of Columbia decided that DHS does in fact have the regulatory authority to grant additional OPT work authorization to STEM graduates, but that DHS had failed to follow regulatory requirements of providing public notice and inviting public comment when it published its original STEM OPT rule in 2008. That rule granted STEM graduates an additional 17 months of OPT work authorization.  As a result of DHS’s failure to follow regulatory requirements, however, the court vacated the 2008 STEM OPT rule on procedural grounds, but delayed the ruling’s effect until February 12, 2016, giving DHS until that date to follow the regulatory procedures to publish the new rule. Recognizing the hardship that not granting an a delay would have on the F-1 students and their employers, particularly in the tech industry, the extension until February 12, 2016 allowed the government sufficient time to correct its error, by providing public notice and allowing for public comment.  Specifically, the court stated that:

“While DHS has not disclosed the number of aliens currently taking advantage of the OPT STEM extension, the Court has no doubt that vacating the 2008 Rule would force “thousands of foreign students with work authorizations . . . to scramble to depart the United States.” (Def.’s Opp. at 44.) Vacating the 2008 Rule could also impose a costly burden on the U.S. tech sector if thousands of young workers had to leave their jobs in short order. The Court sees no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor disruption for the technology sector.”

DHS received approximately 50,500 comments from the public after it published the new proposed rule to extend OPT for STEM graduates to 24 months on October 19, 2015. According to DHS, this is more than its next four most-commented on rules combined, and clearly an enormous amount of public comments that DHS must consider before finalizing and publishing its final rule. As a result, on December 22, 2015, DHS asked the court for a 90 day extension beyond February 12, 2016 to review the “unexpected and unprecedented” amount of public comments and to publish the new rule.

Court Grant’s DHS’s Request for an Extension to Publish New STEM OPT Rule by May 10, 2016:

On January 23, 2016, the court granted DHS’s request for an extension to publish the new OPT rule for STEM graduates, and allowed DHS until May 10, 2016 to do so. The court acknowledged that the original timeline of giving DHS 6 months to correct its procedural deficiencies was “no longer equitable” and acknowledged the hardship that STEM graduates and their employers would suffer if the extension was not granted. Specifically, the court stated that:

“The significance of that hardship cannot be overstated. According to DHS, there are approximately 23,000 STEM OPT participants; 2,300 dependents of STEM OPT participants; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT authorizations. If the stay is not extended, many of these people would be adversely affected, either by losing their existing work authorization, not being able to apply for the OPT extension, or not knowing whether they will be able to benefit from the extension in the future. And of course, the U.S. tech sector will lose employees, and U.S. educational institutions could conceivably become less attractive to foreign students.”

Therefore, the Court extended the deadline for DHS to publish its new OPT rule for STEM graduates by May 10, 2016.

Are There Any Negative Consequences as a Result of the Court’s Extension to Publish the New STEM OPT Rule?

While the Court appears to be sympathetic to foreign students and their employers, there will no doubt be some that are adversely affected by the Court’s decision to allow DHS’s extension to publish the new rule. For example, there is uncertainty for some STEM graduates whose OPT work authorization will expire before May 10, 2016. They will not be eligible to extend their OPT work authorization beyond the current 17 months until DHS publishes the new rule, therefore likely leaving them with a gap in work authorization and possibly even status. While F-1 students are given a 60-day grace period after their OPT expires, this grace period does not permit working in the US and may not be sufficient to allow them to remain in the US until DHS publishes the new rule and they apply for the additional 7 months of OPT. Nevertheless, the new proposed rule will ultimately favor F-1 students in STEM fields, despite the temporary delay in it being published.

Is There a Risk that the Entire STEM OPT Program May Be Dismantled?

Many employers and their employees working on a STEM OPT extension worry that the entire STEM OPT program may be in danger. While their fears are not completely unfounded, it is unlikely that the court would find the STEM OPT program to be invalid entirely. The party that brought the lawsuit against the DHS in March 2014 did challenge the validity of the entire STEM OPT program, but the Court ruled against them on August 12, 2015. In fact, the Court stated that DHS had the authority to provide additional OPT work authorization to STEM graduates “in light of Congress’ broad delegation of authority to DHS to regulate the duration of a nonimmigrant’s stay and Congress’ acquiescence in DHS’s longstanding reading of F-1.” While the litigants did appeal the Court’s decision, and the appeal is currently pending, it is unlikely that the rule would be found invalid on appeal in light of the lower Court’s decision and DHS’s long history of having discretion to extend work authorization to a variety of non-immigrants. If you have questions about the new proposed rule for OPT work authorization for STEM graduates, please contact the attorneys at Minsky, McCormick and Hallagan .

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