On January 23, 2016, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Colombia granted the U.S. Department of Homeland Security’s motion to extend the stay of the vacatur of the STEM OPT rule from February 12, 2016 to May 10, 2016. This decision is zealously being opposed by the Washington Alliance of Technology Workers.

By way of background, the optional practical training (OPT) program allows students here on an F-1 visa (who have either graduated or been pursuing a degree for 9 months) to work in their chosen field of study for one year. In 2008, the U.S. Department of Homeland Security (DHS) promulgated an interim rule that allowed F-1 students with Science, Technology, Engineering, and Mathematics (STEM) degrees (and working for employers enrolled in E-Verify) to be granted a 17-month extension of their employment authorization (for a total of 29 months of employment eligibility). The rule also eliminated the requirement that DHS grant “cap gap” protection via a notice in the Federal Register by making cap gap protections automatic, and permitted F-1 students to apply for OPT during the 60-day period after graduation.

On August 12, 2015, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Colombia vacated the DHS’s 2008 interim rule expanding STEM OPT program in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, Civil Action No. 14-529 (D.D.C. Aug. 12, 2015). At the same time, however, Judge Huvelle stayed the court’s decision until February 12, 2016 to give DHS time to effectuate a new rule.

However, after publishing a new proposed rule in the Federal Register, DHS received over 50,000 comments.  As a result, DHS was forced to request an extension in order to provide it with time to send the final STEM OPT rule to the Office Management and Budget (OMB) for review. This is the last phase before DHS publishes the final regulations in the Federal Register.  But in order to have the rule effective within 60 days from its publication in the Federal Register (and accommodate the May 10, 2016 vacutur date), DHS needs to publish the final rule by March 10, 2016.

Continue to check back with us for updates on the status of this important immigration issue. F-1 students with pending or upcoming applications for STEM extensions should keep a close watch on this issue in the coming months.