From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our second post we will discuss regulatory issues with OPT. 

One of the major immigration developments for 2016 is a proposed rule from the Department of Homeland Security (DHS) that would allow certain F-1 students to extend their period of “optional practical training” (OPT) if they have degrees in science, technology, engineering or math (STEM) from US schools. On January 23, 2016, in the latest development in a lawsuit against DHS by a lobbying group, the Court granted DHS’s request and stayed the vacatur against the program until May 10, 2016. STEM EADs that may have been impacted will now continue to be valid at least until May 10, 2016.

The Proposed Rule and Lawsuit: Background

The proposed rule would increase the allowable OPT period for certain STEM students from 29 to 36 months. The regulation comes after a federal judge in the US District Court for the District of Columbia vacated a previous 17-month STEM extension in August 2015, effective February 13, 2016. The proposed rule was intended to reauthorize the program before the February end date, as well as add a number of enhancements.

On December 22, 2015, after receiving over 50,000 comments on the proposed rule, DHS moved for an extension of the vacatur until May 10, 2016. On January 14, 2016, DHS reiterated its request and asked the court to clarify that existing STEM extension recipients would not be affected by the expiration of the current STEM extension rule.

On January 23, 2016, U.S. District Judge Ellen Segal Huvelle granted the Department of Homeland Security’s request to delay the vacature of the STEM OPT program until May 10, 2016.  “The significance of that hardship cannot be overstated,” Judge Huvelle wrote. “According to DHS, there are approximately 23,000 STEM OPT participants, 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 … If the stay is not extended, many of these people would be adversely affected, either by losing their existing work authorization, not being able to apply for the OPT extension or not knowing whether they will be able to benefit from the extension in the future. And of course, the U.S. tech sector will lose employees, and U.S. educational institutions could conceivably become less attractive to foreign students.”

Benefits and Restrictions for STEM OPT in the Proposed Rule

Along with some new benefits, there are new restrictions and workforce protections included in the proposed STEM OPT regulation.

First, the employer would be required to work with the student to develop a formalized mentoring and training plan before the student’s designated school official would be able to recommend the STEM OPT extension. The plan “must explain how the employment will provide a work-based learning opportunity for the student by stating the specific goals of the STEM practical training opportunity and describing how those goals will be achieved; detailing the knowledge, skills, or techniques to be imparted to the student; explaining how the mentorship and training is directly related to the student’s qualifying STEM degree; and describing the methods of performance evaluation and the frequency of supervision.”

The employer would also be required to attest to a number of provisions designed to protect both US workers and the foreign national employee/s on STEM OPT. Finally, as with the existing STEM OPT program, this proposed rule would require the employer to be enrolled in the E-Verify program.

Our Prediction

Although the Washington Alliance of Technology Workers (WashTech) won on many of their arguments, they filed an appeal of part of Judge Huvelle’s August 2015 ruling which held that DHS has the authority to establish the STEM OPT program.  That appeal remains pending. In addition, WashTech will likely appeal Judge Huvelle’s January 23rd ruling as well.

The STEM OPT program remains intact until May 10, 2016, which should give DHS enough time to finalize the new STEM rules and provide additional guidance for current STEM OPT beneficiaries.