• Federal Court Vacates STEM OPT Extension Program, But Allows It to Stay In Place Pending Further Action from DHS
  • August 14, 2015
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • United States

    F-1 students with an approved STEM extension of optional practical training (OPT) remain eligible to work despite a federal court order vacating the Department of Homeland Security’s 2008 STEM OPT extension regulation. Though U.S. District Judge Ellen Segal Huvelle ruled that DHS failed to give the public adequate notice and an opportunity to comment on its regulation, she stayed her ruling, finding that an immediate vacatur of the STEM OPT program would cause “substantial hardship” to F-1 students and create a “major labor disruption” for technology employers. She granted DHS until February 12, 2016 to complete its notice and comment obligations.

    The decision came in a challenge to the STEM OPT regulation brought last year by a coalition of U.S. technology workers, which alleged that DHS had exceeded its mandate when it created the STEM OPT extension program. The court largely rejected this contention, ruling that Congress has “strongly signaled” its approval of the STEM regulation and other DHS programs permitting F-1 students to work. But the court found that DHS had not justified its decision to implement the rule without public notice and comment.

    What the Court’s Ruling Means to F-1 Students and Their Employers

    Because the STEM OPT regulation will remain in place during the stay period, F-1 students who have been granted a STEM OPT extension continue to be authorized to work, provided that their employment is related to their STEM degree and their employer is enrolled in and using E-Verify.

    USCIS should continue to adjudicate pending applications for STEM OPT extensions and accept new applications, though we expect the agency to issue its own guidance on this issue in the wake of the court’s ruling.

    F-1 students who filed a timely application for a STEM extension should remain authorized to work for an additional 180 days after their initial OPT EAD expires, in accordance with current program rules. This temporary extension of work authorization should remain in effect throughout the court’s stay of its ruling.

    What’s Next for the STEM OPT Program?

    In order to comply with the court’s ruling, DHS is required to publish a STEM OPT regulation through regular notice and comment procedures. The agency is expected to do so by the February 12, 2016 deadline. One likely option is for DHS to issue a new proposed rule that implements plans announced by the White House to issue a new proposed regulation on employment for F-1 students with STEM degrees, as part of its modernization program for the legal immigration system. A key, and positive, aspect of the court's ruling is the court's conclusion that the agency's substantive interpretations in this area were entitled to deference, and that the agency does have the substantive authority to interpret and implement the statute along the lines set out in the existing rule.