The Department of Homeland Security (DHS) sent its proposed regulation on the STEM Optional Practical Training (OPT) program to the Office of Management and Budget (OMB) this week. A notice of proposed rulemaking (NPRM) is expected in the coming days or weeks, followed by a comment period of at least 30 days.  Although the contents of the proposed regulation are unknown at this time, the regulation is expected to 1) re-authorize the STEM OPT program, and 2) provide additional benefits in line with the President’s executive action strategy released last Fall which may include a longer STEM OPT period and an expanded list of eligible degree programs.

Recent Challenges to STEM OPT Program

The STEM OPT program allows recent university graduates who majored in a STEM field (Science, Technology, Engineering, or Mathematics) to receive an additional 17 months of work authorization beyond the initial 12 months of OPT that they receive upon completion of their academic program.  Due to the recent demand for H-1B visas the past few years, the STEM OPT program is a benefit to employers wishing to hire and retain talented interns and employees, but are unable to secure an H-1B for their employees through the H-1B cap lottery.  A recent federal district court ruling in Washington Alliance of Technology Workers v. DHS vacated the STEM OPT program due to procedural issues regarding its creation.  However, the Judge stayed her ruling keeping the STEM OPT program in place until February 12, 2016.

The new regulation is expected to re-authorize the STEM OPT program.  In addition, it is believed the new regulation could increase the STEM OPT extension period, expand the list of degree programs eligible for the benefit, and expand and clarify cap-gap protection for F-1 visa holders awaiting a change of status to H-1B.  The rule is also expected to require degree-granting schools to ensure that there is a direct relationship between an F-1 student’s degree and his or her proposed STEM OPT employment.

Timeline of Proposed Regulation

OMB has a maximum of 90-120 days to review the proposed rule.  OMB will then either recommend changes to the rule or clear the rule for publication. Once the rule is published, individuals and organizations will have an opportunity to provide feedback during a comment period.  Comment periods typically last between 30-60 days.  This timeframe should allow DHS to meet the federal court’s February 12, 2016 deadline.  However, DHS has the ability to request an extension of the February 12th date if needed.  Publication of the rule just before the deadline, or a request to extend the deadline may cause uncertainty for F-1 students who have already received STEM OPT benefits that expire beyond the deadline date or are planning to file STEM extensions over the coming months.