In an August 12, 2015 decision, a federal District Court ruled in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security that the Department of Homeland Security (DHS) did not follow the proper procedures under the Administrative Procedures Act (APA) in issuing the current STEM Optional Practical Training (OPT) rule. The STEM OPT rule allows graduates of U.S. colleges or universities with a degree in science, technology, engineering, or mathematics to obtain a 17-month OPT extension when employed by employers who participate in the E-Verify program. This STEM employment authorization extends the usual 12-month period of OPT work authorization accorded to F-1 students. In part because the demand for H-1B visas far exceeds the annual statutory cap of 85,000, this STEM EAD has been a critical way for students with degrees in these specialized disciplines to remain in the United States as part of their F-1 status.
Of particular importance, however, is that the judge issuing the decision found that an immediate elimination of the STEM OPT program would cause a “substantial hardship” to F-1 students and would create a “major labor disruption” for technology employers. As a result, the order grants DHS until February 12, 2016 to issue a new rule that meets APA notice and comment requirements. This means that students currently relying on the 17-month STEM OPT extension can continue to reside in the United States and can continue to work relying on their STEM EADs.
SPS Immigration PLLC anticipates that DHS will promulgate a new STEM OPT rule, following the APA notice and comment procedures, which will allow for continued employment by STEM graduates during this 17-month extension period. However, many questions remain regarding the details of what DHS might propose. SPS Immigration PLLC is carefully monitoring these developments, and will provide updates as they occur. If you have questions about a STEM OPT extension, please contact SPS Immigration PLLC to discuss your specific situation.