Update on STEM OPT Work Permit Extension: Administrative Process for Regulation Is Underway

In response to Judge Ellen Segal Huvelle’s ruling in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., No. 14-529 (August 12, 2015) that vacated the previous regulations on STEM Optional Practical Training (OPT) work permit extension, on October 2, 2015, the Department of Homeland Security (DHS) submitted proposed new STEM OPT regulations to be reviewed by the Office of Management and Budget (OMB).   Judge Huvelle’s ruling imposed a February 12, 2016 deadline for the promulgation of a new rule in order to continue the STEM OPT program for F-1 students. This action marks the first step in the process to obtain the new final rule.

Background On the Previous STEM OPT Extension Program

Finding that the STEM OPT extension rule had not been subjected to public notice and comment procedures as required by law, Judge Huvelle vacated the DHS regulation that had allowed students with a degree in science, technology, engineering, and mathematics (STEM) to extend their OPT work permits by an additional 17 months. This STEM OPT extension provided a helpful means for F-1 students who had been unable to secure a visa under the H-1B visa quota cap to continue their employment in the United States.  Recognizing that immediately cancelling the STEM OPT program would be “seriously disruptive,” causing “substantial hardship” and a “major labor disruption,” Judge Huvelle stayed the vacatur until February 12, 2016. This six-month stay grants DHS an opportunity to continue the STEM OPT program by following the requirements of the Administrative Procedures Act to properly issue regulations and allow for public notice and comment prior to the regulations becoming effective. 

Since OMB clearance is required before the proposed regulations can be published, the contents of the proposed regulations are not yet available. OMB has 90 to 120 days to review the proposed rule and suggest any changes prior to clearing the regulations for publication. After OMB approval, the proposed regulations will be published in the Federal Register, and members of the public will have 30 to 60 days to provide feedback. Once the comment period expires, DHS will review and analyze the responses and then publish the final regulations in the Federal Register. Per Judge Huvelle’s stay of the vacatur, the final regulations must be published by February 12, 2016, to avoid any disruption in the STEM OPT extension program.

Impact On F-1 Students

This is good news for F-1 students currently working under approved STEM OPT extensions as they should be able to maintain their F-1 status and work authorization. Additionally, DHS should continue to accept and adjudicate applications for STEM OPT work permit extensions until further guidance is issued. F-1 students should also be permitted to continue working for an additional 180 days after their initial OPT work permit expires as long as they have timely filed a STEM OPT work permit extension application. In light of Judge Huvelle’s stay of the vacatur, the STEM OPT work permit extension regulation issued in 2008 will remain valid until February 12, 2016, or until a final regulation is published, whichever occurs first.

Ogletree Deakins will continue to monitor and report on any new developments regarding the STEM OPT program.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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