Employment authorization for student visa holders could be jeopardized because the USCIS failed to properly publish its April 2008 rule with the required notice and comment.

The US District Court for the District of Columbia vacated the USCIS STEM extension rule in an August 12, 2015, decision.  The court stayed the ruling until February 12, 2016, to give the USCIS opportunity to correctly publish the rule with proper notice and comment; however, until that date, USCIS will accept STEM extension applications and already approved STEM extensions will not be affected. The USCIS is expected to act before the deadline.

In general, F-1 foreign student visa holders are eligible for 12 months of employment authorization, called Optional Practical Training (OPT), after graduation.  In 2008, an “extension” of 17 months of employment authorization became available to F-1 visa holders who graduated from American universities with a degree in Science, Technology, Engineering or Math (STEM).  In addition, STEM employment authorization is limited to employers enrolled in the voluntary e-Verify program.

The case is Wash. Alliance of Tech. Workers v. DHS.