DHS proposes New STEM OPT Extension Rule | F-1 Visa Update | Complete Update

There has been so much of news and confusion around the 17 month OPT STEM extension cancellation by US District court.

Finally, The Department of Homeland Security (DHS) sent its proposed regulation on the STEM Optional Practical Training (OPT) program to the Office of Management and Budget (OMB) early October 2015.

A notice of proposed rulemaking (NPRM) is expected in the coming days or weeks, followed by a comment period of at least 30 days.


Although the contents of the proposed regulation are unknown at this time, the regulation is expected to

1) re-authorize the STEM OPT program, and

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2) provide additional benefits in line with the President’s executive action strategy released last Fall which may include a longer STEM OPT period and an expanded list of eligible degree programs.

Neither H-1B nor OPT is an immigrant visa—these programs are designed for people who want to return home eventually. But they’ve still been controversial, and some see H-1B especially as helping foreigners take American jobs.

The number of international students in the U.S. hit a record high in 2014, with more than 880,000 students. As college students worry about choosing their majors and finding jobs for after graduation this fall, the stakes are especially high for international students.

OPT lets international students with a U.S. student visa work for 12 months at jobs or paid internships that relate to what they studied without needing to apply for a work visa. What is OPT  – OPT stands for Optional Practical Training and it lets F1 students to work in US after their graduation ( or before) for 12 months. OPT is given to anyone who completes a degree like Bachelors, MS, MBA, or PhD from US Universities.  Also, if the degree you get falls under STEM ( Science, Technology, Engineering or Mathematics ) category, the F1 student can apply for a 17 month extension of the OPT. This extension rule was passed by USCIS in April of 2008.

The new regulation is expected to re-authorize the STEM OPT program.  In addition, it is believed the new regulation could increase the STEM OPT extension period, expand the list of degree programs eligible for the benefit, and expand and clarify cap-gap protection for F-1 visa holders awaiting a change of status to H-1B.  The rule is also expected to require degree-granting schools to ensure that there is a direct relationship between an F-1 student’s degree and his or her proposed STEM OPT employment.

Timeline of Proposed Regulation – DHS proposed news regulation on the STEM Optional Practical Training (OPT) program just in time – Big Relief for International Students on F1 Visa

Working backwards from the required effective date of February 12, 2016, then the first timeframe to take account of is the mandatory 60-day delay between the publication of the final rule and the effective date. Because the rule is a “significant rule” within the meaning of Executive Order 12866, a minimum 60-day delay between final publication and effective date is imposed. As such, to be effective on February 12, 2016, when the court’s order invalidates the STEM OPT rule, the final replacement rule must be published no later than December 14, 2015.

To publish a final rule by December 14, a proposed rule should be published at least 60 days before that date. The 60-day timeframe is set by the APA, which requires that any proposed rule be released with at least 30 days for comment from the public. After the comment period, the agency will need time to evaluate and analyze the comments – at least 30 days – before publishing the final rule. So, the draft rule should be published no later than October 15.

This deadline has been met by the DHS.

OMB has now has a maximum of 90-120 days to review the proposed rule.  OMB will then either recommend changes to the rule or clear the rule for publication. Once the rule is published, individuals and organizations will have an opportunity to provide feedback during a comment period.  Comment periods typically last between 30-60 days.

Recent Changes to STEM OPT Program

U.S. District Judge Ellen Segal Huvelleon (D.C.) on Wednesday, August 12, said the 2008 Department of Homeland Security rule that allows certain F-1 visa students with math and science-related degrees to have an additional 17 months of training in the U.S. is deficient because it wasn’t subjected to public notice and comment, but she allowed it to stay in place temporarily till Feb 2016..

The lawsuit sought to prevent foreign students from having an opportunity to gain practical experience in the U.S. following their full-time course of study.

The Court invalidated a 2008 U.S. Department of Homeland Security (DHS) rule which permits an F-1 student to receive up to a seventeen (17) month extension of their Optional Practical Training (OPT) on top of the twelve (12) months previously authorized (for a maximum of twenty-nine months), if their field of study is in a designated as a Science, Technology, Engineering or Math (STEM) field and the employer is registered in the E-Verify Program.

The Court’s decision is based on the allegation that DHS did not lawfully issue the 2008 rule because DHS failed to provide the public with notice and an opportunity to comment in advance of issuing it – what is often commonly referred to as the normal “rule-making procedure”. DHS explained, at the time, that the STEM OPT extension was necessary because it would benefit the economy by reducing the disruption to U.S. high-tech employers that occurred when these F-1 STEM-degree graduates reached the end of their twelve-month OPT and their employers could not receive an H-1B classification for them to remain in the U.S. as highly-skilled workers because of the numerical limitations placed on H-1B visa numbers.

Interestingly, the Court found that the substance of the rule itself was not unreasonable. The Court spoke specifically to the procedure DHS followed to issue the 2008 rule. In addition, the Court invalidated DHS’ later modifications of the rule that expanded the list of designated fields of study. The Court stayed its order until early-2016 to allow DHS to correct its procedural mistake. As many are aware, in November 2014, President Obama announced new policies and regulations to support U.S. high-skilled businesses and workers. Part of that initiative is directed at the development of regulations for notice and comment to expand the degree programs eligible for OPT and to extend the length and use of OPT while “ensuring that OPT employment is consistent with U.S. labor market protections to safeguard the interests of U.S. workers in related fields.”

The “ripple effect” of the Court’s Order in Washtech is likely to be the impetus of the Administration to issue proposed regulations for notice and comment. The “soon to be issued” proposed regulations will likely be more expansive and will benefit foreign students as well as U.S. employers and all workers.

STEM extension was created in 2008 to help F-1 students who were not selected in the H-1B lottery by allowing them to continue on OPT until they could try for the H-1B again the following year. The DHS estimated in 2008 that there were about 70,000 F-1 visa students on optional practical training, or OPT, and that one-third had earned degrees in a science, technology, engineering and math, or STEM, field, according to Judge Huvelle. And while the agency had not disclosed the current number of immigrants taking advantage of the extension, she had no doubt that vacating the rule would force “thousands of foreign students with work authorizations to scramble” to leave the country, she added, citing DHS’ opposition brief.“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,” the judge said. “As such, the court will order that the 2008 Rule — and its subsequent amendments — be vacated, but it will order that the vacatur be stayed.”Judge Huvelle did, however, disagree with the union’s argument there was not enough evidence to show that Congress was aware of DHS’ interpretation of F-1, saying in light of Congress’ broad delegation of authority to the agency to regulate the duration of a nonimmigrant’s stay and Congress’ acquiescence in DHS’ long-standing reading of F-1, the DHS’ interpretation was not unreasonable.

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