F1 Visa | OPT STEM | Court Says USCIS Rule Allowing 17-month STEM Extension is Revoked

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Update: DHS Proposes New STEM OPT Extension Rule | F-1 Visa Update | Complete Update – Click to Read Now – Updated October 12, 2015

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.

The judge vacated the 2008 rule allowing the 17-month extension, HOWEVER, a stay was put in place until February 12, 2016. DHS will have until then in order to take action regarding the fate of the STEM extension program.

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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.
The decision in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security was based on the fact that DHS did not go through the usual notice and comment period required for new regulations.
The judge determined that the situation for high-tech employers was not urgent enough to bypass the notice and comment requirement for the regulatory process. The judge further indicated that the deficiency in the process was serious enough to require the rule to be vacated (i.e. cancelled).
Since it is now August, there should be sufficient time for DHS to propose the same rule again and provide the proper period for notice and comment (usually 60 days). Then, the rule may be implemented again by the time the stay is lifted. If all goes well, this decision should not impact those currently on a STEM extension or those who will become eligible after February.
Disclaimer: This information has been collected through secondary research and TIP is not responsible for any errors in the same.
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