A February 12, 2016, court-imposed deadline to determine the fate of certain student work permits is fast approaching. At this point, it is unclear whether the U.S. Department of Homeland Security (DHS) will be able to meet its regulatory target date to extend work permits granted to certain students with F-1 visas. The failure to act or extend the work permits may adversely affect the continued employment of these workers.
F-1 visas are visas granted to foreigners to study in the United States. Traditionally, a student entering the country on an F-1 visa could be authorized to receive up to 12 months of optional practical training (OPT) either before (pre-) and/or after (post-) completion of studies in the United States. Effective April 8, 2008, the DHS published an interim final rule that granted an additional one-time post-completion OPT to qualifying F-1 students to apply for a 17-month extension. To qualify for this one-time extension, the F-1 students must be working towards a science, technology, engineering, and mathematics (STEM) degree included on the STEM Designated Degree Program List, be employed by employers enrolled in E-Verify, and have received an initial grant of post-completion OPT related to such a degree.
On August 12, 2015, the U.S. District Court for the District of Columbia found that DHS' failure to provide notice and invite public comment before the 2008 STEM OPT extension rule took effect was "a serious procedural deficiency" that warranted vacating the 2008 rule. In its order, however, the court stayed its decision until February 12, 2016.
On October 19, 2015, the DHS published the proposed STEM OPT rule to extend the OPT period by 24 months, with the public having 30 days to comment on the proposed rule. Taking these comments into consideration, the DHS would then prepare a final rule for the Office of Management and Budget’s (OMB) approval and, finally, publication in the Federal Register. The final rule would then take effect 60 days after publication. Based on the court’s February 12, 2016, deadline to terminate the STEM OPT extension rule, DHS would have had to have published the new rule by December 12, 2015, but failed to do so.
On December 22, 2015, DHS asked the court to extend the court’s decision to May 10, 2016. On January 11, 2016, the Washington Alliance of Technology Workers responded to DHS’ motion by asking the court to deny DHS’ extension request. On January 14, 2016, DHS filed a reply motion reiterating its December 22, 2015 request for an extension and asking for an expeditious decision. DHS, in its motion, also asks the court that if were to deny DHS’ extension request, to clarify that the legal status of those students currently in possession of valid STEM OPT work permits will not be affected by the court’s decision.
To date, no decision has yet been made regarding the validity of the STEM OPT work permits after February 12, 2016. Should the rule not take effect by then, F-1 students currently on STEM OPT extension will get the standard 60 days' grace period to leave the country or look for alternatives such as changing their F-1 status to another status or enrolling in school to pursue another degree. This is a critical issue as the upcoming H-1B Cap (lottery season) is about to start. Delays in implementing this rule will likely cause employment interruptions for some of those selected for H-1B processing who are subject to this rule.