• Proposed New STEM OPT Regulation Now Under Review at OMB
  • December 4, 2015
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • The Department of Homeland Security has sent a proposed regulation on the STEM optional practical training (OPT) program to the Office of Management and Budget (OMB) for its review and approval - an essential step toward meeting a federal court deadline to ensure that the STEM program stays in place without interruption.

    DHS’s action follows a recent federal district court ruling in Washington Alliance of Technology Workers v. DHS, a lawsuit challenging the validity of a regulation that allows F-1 students with a qualifying STEM degree to obtain a 17-month extension of OPT. In that case, U.S. District Judge Ellen Huvelle invalidated the regulation on the ground that DHS had not followed proper administrative notice and comment procedures when the regulation was first implemented. But Judge Huvelle immediately stayed her ruling, keeping the STEM OPT program in place for now and giving DHS until February 12, 2016 to publish the regulation in the Federal Register and accept public feedback. OMB clearance is required in order for the rule to be published.

    The contents of the new proposed rule will remain confidential until publication, but it could increase the STEM OPT extension period, expand the list of degree programs eligible for the extension and require degree-granting schools to ensure that there is a relationship between an F-1’s degree and his or her STEM OPT employment. The rule could also expand cap-gap protection for F-1s awaiting a change of status to H-1B.

    What This Means for Employers and Foreign Nationals

    The advancement of the proposed rule to OMB is a positive sign that DHS is working to ensure that the STEM OPT program continues uninterrupted and that eligible F-1 students can continue to seek an extension of OPT.

    OMB has a maximum of 90 to 120 days to review the proposed rule, after which it could recommend changes or clear the rule for publication. This timeframe should not prevent DHS from meeting the court’s February 12 deadline, but employers should be aware that DHS may not publish the rule until just before the deadline and could even request an extension. This could mean a period of uncertainty for F-1s working on OPT now and planning to apply for a STEM extension before their current work authorization expires.

    Once the rule is published, individuals and organizations will have an opportunity to provide feedback during a comment period, which is typically 30 to 60 days long. Comments from employers will be crucial to make DHS aware of the importance of the STEM program and to give feedback on proposed substantive changes.