Updates on STEM OPT court ruling

Many students are aware, and understandably concerned, about the unsure future of the OPT STEM Extension.  This site hopes to serve as a centralized resource to help you get the best updates and information about the future of the STEM Extension.  Please note that any descriptions of legal actions so far are our own interpretations and understanding, and should not be substituted for doing additional resource, especially with the additional sources provided below.

We will continue to send email updates with any substantial news on this issue, as well as updating this webpage.  If you hear of any updates from a reliable source, please share them with us as well and if we can verify them as based in fact, we’re happy to share them here.

 

Brief Overview of the Problem with STEM OPT 

In August 2015, a US District Court judge responded to a law suit from a union of technology workers against the STEM Extension.  The judge agreed with the law suit that the STEM OPT program was created inappropriately in 2008 – it was created without public comment, which is required except in emergency situations.  The court ruled that DHS (Department of Homeland Security) never proved that the situation in 2008 was an emergency, so they should have provided the usual public comment period.

The judge gave DHS until February 2016 to essentially fix the way the STEM Extension was made.

While it is expected in our field that DHS will repair the grievances against the STEM Extension before the deadline, DHS has not made a public statement that we are aware of.  As of Fall 2015, there is no change to the current processing of STEM OPT applications and the length of time for which they are approved. 

 

Updates on progress of the new STEM OPT Rule

UPDATE: On Oct 2 2015, a new rule to correct (and possibly expand) the STEM Extension was forwarded from DHS to the Office of Budget Management (OMB).  OMB will need to approve it before it is made public, so the details of the rule are not yet known.  However, this is an encouraging step towards resolving the issue.

UPDATE: On Oct 16, the OMB approved the DHS new rule concerning STEM OPT, and expects to publish it on their website on Monday Oct 19.  A draft version is immediately available, and can be reviewed here.

Summary:
The proposed new rule preserves the OPT STEM Extension, but also expands it in some ways.
1. The STEM Extension would be for an additional 24 months after the first year of OPT (more time than the previous 17 months)
2. The new rule would require companies hiring individuals through the STEM Extension to have “formal mentoring and training plans” for those individuals.  This would include 6 month evaluations from the student, submitted to the DSO (us), and a final evaluation at the end of the STEM OPT period.  (pg 44)
3. The employer would still need to be E-Verified, and the H-1b Cap Gap would still exist in the same way (extends OPT if the individual has an H-1b application that is receipted but OPT will expire before the start of the H on Oct 1)
4. Students whose most recent degree is not a STEM degree, but have previously completed a STEM degree in the US, would be eligible for the STEM Extension, but would need to use STEM skills in their STEM employment period (it’s not clear how this would be tracked)
5. The STEM Extension would be available multiple times – it appears to suggest that it could be used once after each OPT year (keep in mind you have one OPT year per degree level, moving upward only).  You could not use more than one STEM Extension in a row – the maximum work authorization after completing a degree would be one year of OPT and 2 years of STEM Extension – a total of 3 years.
6. The STEM Extension will still be for STEM degrees specifically, though this list could be gently expanded.
7. Comments will be accepted for one month following the formal publishing of the new rule, presumably on Monday Oct 19.  Directions for leaving comments are in the rule.
Moving Forward:
 
Please remember that this is NOT yet the new law!  This is the proposed new law, which now needs to undergo public comment before it can move forward to potentially become the new law.
If you would like to leave comments, please do, but please remember that your comments will be most useful and most considered if your recommendations or criticisms are within the scope of F-1 status.  For example, “OPT should be longer so students can work more” is not particularly helpful.  Keep in mind that DHS has to justify STEM OPT as related to academic goals, NOT long-term work opportunities, since OPT and STEM OPT are part of the F-1 student visa regulations.  They MUST be connected to academic goals to be part of F-1 status.  You can get some ideas from the language DHS uses in their rule, where they defend STEM OPT as an important part of the learning process for students to gain experience after graduation.  Comments considered from this perspective will be most helpful and potentially useful to them in moving this new rule forward to become a law.
**DHS specifically asks for feedback in certain parts of the rule.  Page 38 might be particularly interesting for students, as it asks for feedback on the duration of the STEM Extension, which was in large part determined based on the life of grants and projects in the STEM fields.
For those applying for the STEM Extension before this rule might becomes the new law, we can assume you will receive the currently approved 17 months of additional time.  Once the rule is approved and becomes law, we will learn how students already in the STEM Extension might be impacted.  USCIS (a branch of DHS) is still accepting STEM Extension applications, and is currently approving them for the full 17 months of additional time.  This is not anticipated to change until the new rule is approved and becomes law.  The draft rule suggests that students already in the STEM Extension at the time of the change will be able to apply for the additional time if they meet all new requirements (pg 39). We won’t have details on how this would work until the new rule is approved.
UPDATE: On Oct 19, the official rule is now published online, and comments are welcome.  You can find the rule here – directions for submitting and reviewing comments are available in the first section of the rule.  Comments are being accepted through Nov 18 2015.

Resources to follow the progress of the STEM OPT debate

1. NAFSA, the Association of International Educators, has a concise summary of the steps taken so far, with additional updates as they become available, here.

2. Track the actual regulations being proposed by US lawmakers through the Office of Information and Regulatory Affairs (Click on “DHS” to narrow by agency).  Note – there is no actual information about the proposed rule here yet, as it has to be approved by this Office before it can be made available for public review and comment.

3. Sign up for email newsletters from Immigration Law Firms.  We receive email updates from the following legal groups, but please let us know if you receive updates from another source you would like us to share here!

4. Additional Helpful Articles from reliable sources:

Let us know if you receive updates from another source you would like us to share here!

Please be careful in reading updates outside of clearly reliable sources, such as law firms and professional organizations, to make sure you get the best information.  There are a lot of emotions around this issue, and its easy for individuals to publish things online that are not necessarily valid or based on fact.  Please be judicious in the amount of trust you put in articles and other sources you might find, to save yourself any extra stress or anxiety!