50000 Foreign-Born STEM Workers May Be Forced Home as DHS Seeks Additional Extension for STEM OPT Rule Beyond Feb. 12, 2016

The U.S. Department of Homeland Security (DHS) published the proposed rule Oct. 19, 2015. The proposed rule allows eligible foreign students to extend their F-1 Optional Practical Training (OPT) for 24 months beyond the usual 12-month OPT period, provided certain requirements are met. This is a change from a 2008 rule that had permitted a 17-month extension.

The original rule allowing the extension of F-1 OPT by 17 months for certain STEM students was introduced and implemented in April 2008, with no notice and comment period. 

In August 2015, the U.S. District Court for the District of Columbia determined that the Department of Homeland Security (DHS) improperly promulgated the regulation allowing the 17-month STEM extension for optional practical training (OPT) because the regulation was not subject to notice and comment rulemaking, which requires DHS to consider public comments before making the regulation final. However, the judge did rule to keep the STEM OPT regulation in place through Feb. 12, 2016, during which time DHS was to submit the regulation for notice and comment by the public and interested stakeholders.

The regulation was kept in place so that the students utilizing a STEM extension would not be forced to leave the country or left without work authorization.

On Oct. 19, 2015, DHS issued the long-awaited notice of proposed rulemaking (NPRM) to amend the F-1 OPT regulation to allow for an additional 24 months of optional practical training if the student has earned a degree in science, technology, engineering or mathematics (STEM).

As a result of the Oct. 19, 2015, NPRM, DHS received over 50,500 comments from interested stakeholders.

opt stemLast week, DHS filed a motion with the District Court to seek relief from the judgment, hoping to get a further delay on the vacatur of the regulation. This is a Hail Mary on the part of DHS; and a big gamble with the over 50000 students who will be affected and forced to go home before any formal training; which they should be entitled to and was an important factor they considered before enrolling themselves in US Colleges.

The agency has asked the U.S. District Court to prolong the stay through May 10, 2016, to keep the STEM regulation in place to allow additional time for it to review the overwhelming amount of comments received. DHS also stated that it needs additional time to train officers on the new STEM OPT requirements.

If the District Court vacates the original 2008 OPT extension rule allowing for the STEM extension before DHS publishes the final regulation, F-1 students seeking a STEM extension will be prevented from doing so during any gap between Feb. 12, 2016, and the time the new rule is published.