On January 23, 2016, the U.S. District Court for the District of Columbia granted the Department of Homeland Security’s (DHS) request to extend the deadline to finalize the new set of Optional Practical Training (OPT) regulations for international students with degrees in science, technology, engineering, and mathematics (STEM). Prior to this ruling, the current STEM OPT regulations were set to expire on February 12, 2016. The court’s order extends the STEM OPT program in its current form through the new May 10, 2016 deadline, when DHS must promulgate the final STEM OPT rule.

In its order granting the extension, the district court noted that the previous timetable for repromulgation was “overly optimistic” and noted the significant hardship that would result should the STEM OPT program expire on February 12, 2016, stating that “2,300 dependents of STEM OPT participants; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT authorizations” would be affected.  Unprecedented public response to the proposed rule and consideration of the content of the comments were some of the reasons DHS requested more time to finalize the regulations.

The new STEM OPT rule will offer STEM-eligible students a number of potential benefits including:

  • an increase of the OPT extension period from 17 to 24 months for a total of 36 months of OPT employment status;
  • eligibility for an additional 24-month STEM OPT extension through enrollment in a subsequent STEM degree program;
  • a clearer definition of and possible additions to STEM-eligible fields of study; and
  • an increase in the number of days an F-1 student may be unemployed (i.e., a grace period) by an additional 60 days if the student receives a STEM OPT extension.

How did we get to this point? Here is a timeline of the STEM saga:

March 28, 2014:

  • The Washington Alliance of Technology Workers (WashTech) filed a lawsuit against DHS, challenging the legality of the STEM OPT extension rule. WashTech argued that the STEM OPT program exceeded DHS’s statutory authority and should have been subject to the requisite public notice and comment procedures.

August 12, 2015:

October 16, 2015:

  • In response to the decision, DHS released a notice of proposed rulemaking (NPRM) concerning the new rules for extending the OPT program for international students with degrees in STEM fields.

October 19, 2015:

  • The NPRM was published in the Federal Register and was subject to a 30-day public comment period, ending on November 18, 2015. The NPRM was consistent with direction from the district court that a new rule be promulgated before February 12, 2016 in order for the program to continue.

December 22, 2015

  • DHS filed a motion to extend the district court’s deadline from February 12, 2016 to May 10, 2016, arguing that its inability to promulgate a replacement rule prior to February 12, 2016 constituted extraordinary circumstances, thus meriting an additional 60-day extension. As stated in the January 23 Order, DHS submitted proof of the “unprecedented” public response to the NPRM (50,500 comments) and argued that the new rule would create “uncertainty and confusion” without extensive training of agency personnel and outreach to the regulated community. DHS also argued that a gap in the STEM OPT program after February 12, 2016 would cause extreme hardship to workers and employers who participate in the program.

January 11, 2016

  • WashTech filed a response opposing DHS’s request for the extension of time.

January 15, 2016

  • DHS filed a response to WashTech’s motion. 

January 21, 2016

  • The judge held a hearing on the issue.

January 23, 2016

  • The district court granted DHS’s 60-day extension request, extending the vacatur to May 10, 2016.

What This Means for Employers

This district court order extends the STEM OPT program in its current form until May 10, 2016. Employers can continue to employ foreign graduates pursuant to STEM OPT work authorization as they have done since the advent of the STEM OPT program in 2008. Employers should look out for the key date of May 10, 2016, when the current version of the program expires and DHS’s revised STEM OPT rule should be in place. Stay tuned!