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Update on STEM OPT Litigation - January 20, 2016

Many of you are following the STEM OPT saga closely.  As the original deadline of February 12, 2016, approaches, we are providing this brief update.

 

As background, the OPT (optional practical training) program is part of the F-1 student visa program.  Most students qualify for 12 months of OPT following graduation.  Students with STEM (science, technology, engineering and math) majors can qualify for an additional 17 months of OPT in certain situations.

 

The STEM OPT program was challenged in court on the basis that the government had not followed the Administrative Procedures Act in promulgating the rule.  The court agreed but gave the government until February 12, 2016, to comply.

 

The government published a proposed rule, as required, in time to comply.  However, public response to the rule was unprecedented (more than 50,000 comments were submitted).  Therefore, the deadline for publishing a final rule in time to meet the February 12, 2016, deadline has passed.

 

The government has asked for a 90-day extension to the deadline.  Additionally, the ruling is on appeal and the appellate court could also in a sense extend the deadline by not allowing the lower court’s order to go into effect on February 12.

 

Unfortunately, all we can do is wait and see.

 

In the very worst case scenario, the STEM OPT program would end February 12 and students in that program would have 60 days to leave the U.S.  However, they could not work after February 12.

 

Given the wide-spread ramifications of this rule on both students and employers, it is hard to imagine this happening.  But we cannot completely count it out.  Students on STEM OPT are advised to remain in the U.S. or to return before February 12 as a precaution.

 

Those planning to apply for H-1Bs may still do so, but if the program goes away, October 1, 2016, would be the earliest that work could be authorized.

 

We will notify you of any developments.

 

UPDATE:  Today, January 22, 2016, the court held a hearing regarding whether to extend the February 12, 2016, deadline in the STEM OPT case.  She did not rule, but said she would do so quickly given the deadline.