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What is going on with STEM OPT? - August 26, 2015

A recent federal court ruling has created uncertainty and speculation about the STEM OPT program.  This summary is provided to inform employers and F-1 STEM students of the facts about the effect of this decision.


The lawsuit, known as Washtech (Washington Alliance of Technology Workers v. DHS), was brought to challenge regulations issued in 2008 that created the “STEM extension” for certain F-1 OPT students.


As background, the F-1 status allows foreign students to study and work in certain contexts.  Optional practical training (“OPT”) is available to most students who complete a degree program (bachelor’s or higher) for a period of 12 months.  In 2008, the Department of Homeland Security (“DHS”) issued new regulations allowing students with STEM degrees (science, technology, engineering and math) to extend the OPT an additional 17 months.  The rule also listed the degree program that would qualify for such extensions.  Later, DHS expanded that list to include additional majors.


Washtech lodged several complaints about the regulation.  As an association representing tech workers, it claimed that the STEM OPT rule allowed foreign students to compete for tech jobs.


The court rejected all of Washtech’s complaints except one:  DHS violated the Administrative Procedures Act when it failed to provide a public notice and comment period when promulgating the rule. 


This failure is a defect that leads to voiding the rule.  However, the court found that immediate “vacatur” would cause chaos for employers and foreign students alike, and granted DHS six months to go through proper procedures to re-publish the rule.


Important take-aways:

  • The STEM OPT rule still exists.  F-1 students who qualify may file for STEM OPTs up to 120 days in advance of the end of the 12-month OPT.  We suggest filing as early as allowed. The six month period ends February 12, 2016.
  • DHS has time to re-issue the rule with appropriate public comments.  DHS had already signaled last November that it planned to amend the rule. If this means that the rule was already being re-worked, it will be even more likely that DHS will act promptly to fix the problem.  We will watch to see if DHS publishes the new rule timely.
  • The arguments the court rejected are as important as the one it upheld.  The court found that F-1 status appropriately extends beyond graduation, and that DHS has authority to allow OPT and to change its parameters.
  • Those who believe foreign workers are undercutting the U.S. job market are becoming more sophisticated in their efforts to limit immigration programs.  It is more important now than ever to let your members of Congress know why foreign workers are needed in your business and also why providing training to foreign students is important for their education and future foreign relations. We are always happy to assist in making these contacts.