On January 23, 2016 the U.S. District Court for the District of Columbia extended the deadline for DHS to issue a new final rule to May 10, 2016. Citing an unprecedented number of comments received regarding the rule (over 50,500) and noting that “the content of those comments suggested that the new rule would create ‘substantial uncertainty and confusion’ without extensive training of agency personnel and outreach to the regulated community” DHS asked for the extension to prevent the hardship that a regulatory gap would create for participating students and their employers.
Still unsettled are a pending appeal by the Washington Alliance Technology Workers that challenges the original judge’s determination that DHS has the authority to establish the STEM OPT benefit. This case is still pending. Also unsettled are what changes to the proposed rule, if any, will take place based on the comments received.
OIS will continue to monitor and inform of updates. In the meantime, our advice remains – those with standard OPT expiring between now and May 10, 2016 should continue with their applications. Regardless of what happens with the rulemaking process and pending appeal, students who fail to file a timely application for a STEM extension will lose that benefit.
On October 2, 2015, the Student and Exchange Visitor Program submitted a new proposed STEM OPT rule for the Office of Management and Budget’s (OMB) review and approval. Titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions”, this rule was developed to implement an Executive Order to expand and address problems with the STEM OPT extension that was announced before the Wash Tech decision.
In order to maintain the STEM OPT extension option, the rule will have to be published as proposed rulemaking with a comment period. The SEVP will have to respond to issues raised in the reported rulemaking, and then publish the rule as final before February 12, 2016 deadline.
Two important unknowns have been resolved for now- the federal government avoided a shutdown, which would have impacted this possibility, and the rule has been submitted to OMB. There is still a high level of uncertainty about what comes next or whether the deadline will be met. In the meantime, OIS’s advice continues to be that those with standard OPT expiring between now and February 12, 2016 continue with their applications. Regardless of what happens with the rulemaking process, students who fail to file a timely application for a STEM extension will lose that benefit.
Continue to monitor this page for additional updates as they are available.
What is it?
The Washington Alliance of Technology Workers, a union representing STEM workers (the plaintiff), sued DHS over their 2008 rule allowing an expansion of the traditional 12 months of OPT to an additional 17 month extension for graduates of certain STEM fields. The primary argument by the plaintiff was that the STEM extension created unfair competition with U.S. workers by international students, and that DHS impermissibly implemented the STEM OPT extension to alleviate pressure on the H-1B cap numbers, which only Congress has the authority to do. In addition to the STEM OPT extension, this rule also included the automatic “Cap Gap” extension, which allows for an automatic extension of OPT for certain cases who have an approved H-1B change of status.
The plaintiff argued that the definition of “student” in the immigration regulations does not allow for employment, particularly post-completion employment, thus potentially impacting traditional OPT as well as the STEM OPT extension.
What did the court decide?
On August 12, 2015, The U.S. District Court for the District of Columbia issued its decision. Importantly, the court upheld DHS’ interpretation that “F-1 [status] – inasmuch as it permits employment for training purposes without requiring ongoing school enrollment – is “’longstanding.’” Optional Practical Training has existed in some form for over 70 years, and the fact that Congress, despite numerous opportunities to do so, has never opposed DHS’ interpretation about this type of employment means that it is not unreasonable, and traditional OPT has survived this decision.
However, the court did find that DHS did not follow the required rulemaking process, which requires notice to the public and a comment period before a regulation can be made final. So the court has “vacated,” or thrown out, the 2008 rule allowing for STEM and the “Cap Gap” extension. However, recognizing the serious disruption that this decision would have on students and employers, the court has stayed the “vacatur” until February 12, 2016. During this time, DHS will have to get through a new rulemaking process, including a notice and comment period, in order to keep the STEM OPT program and Cap Gap extension going.
What does this mean?
This means that until February 12, 2016 (or until we hear differently from DHS) nothing has changed. Students who are eligible for the STEM extension and whose first OPT will expire between now and February 12, 2016 should go ahead and apply. Students currently on STEM OPT can continue to work on their valid EAD cards, and all rules relating to reporting employer and address information remain in place. Students who have an approved H-1B beginning October 1, 2015 and are currently on the “Cap Gap” extension still have that authorization to continue working through September 30, 2015 on your F-1 OPT.
What remains to be seen is exactly how DHS will work to address this. On Friday the Student and Exchange Visitor Program (SEVP), which governs SEVIS, sent a Broadcast Message advising schools of the decision. The only guidance right now is that SEVP is reviewing the ruling and will issue additional guidance in the coming weeks on how this will impact schools and students.
OIS will keep students apprised of developments, both through this webpage and as needed through direct email communications to impacted students. Please be patient as we wait for additional guidance from the government.