A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, January 23, 2016

STEM OPT Program Extended to May 10, 2016 by Federal Judge

Today Judge Elle S. Huvelle of the D.C. Federal District Court granted the DHS request to extend the Court's vacatur order for 90 days in the pending STEM OPT lawsuit. In effect, the STEM Optional Practical Training program will remain valid until May 10, 2016.  

This court order is particularly important to thousands of foreign technical students who are coming to the end of their regular OPT employment this year. As they ponder their options, the pending litigation surrounding the STEM OPT program has created confusion and uncertainties.  The timing of this order is significant.  By this order, not only will these STEM students be able to extend their OPT employment, but they also will be able to apply for H-1B employment in April with their OPT extension.  
According to DHS statistics, there are currently about 23,000 STEM OPT participants and 2,300 dependents of these participants.  8,000 STEM OPT applications are currently pending before DHS. Further, there are 434,000 foreign students who are potentially eligible to apply for an extension of stay and employment under the STEM OPT program.

A group of American technical workers filed a suit in the D.C. Federal District Court, challenging the legality of the STEM OPT program.  The STEM Optional Practical Training rule was promulgated by DHS in 2008. The plaintiffs in the suit alleged that the 2008 rule was implemented without notice and comment, as required by law.  Judge Huvelle issued an order vacating the rule but stayed the order until February 12, 2016, to allow DHS time to obtain proper notice and comment on the rule. DHS requested for an extension of the February 12, 2016 date after having received more than 50K comments on the proposed rule.  

The STEM OPT program in existence grants 17 additional months of employment to qualified foreign students.  To apply for a STEM OPT extension, a student must be in post-completion 12-month OPT and has earned a designated STEM degree.  Employment must be directly related to the field of study. Further, the employer must be registered with the DHS E-Verify employment verification system, and agree to report any termination or changes in employment status within 48 hours. Students may apply for STEM OPT 120 days before the regular OPT expires by filing the I-765 form. Once an application is submitted, a student is allowed to continue working for up to 180 days or until the USCIS makes a decision.  

The new rule published by DHS proposes some significant changes to the current program.  For instance, 24 instead of 17 additional months of employment have been proposed. A new employment period will also be granted for each qualified academic program. Other changes include: better defined STEM degree programs, better employer training and monitoring, better protection for U.S. workers, etc.  

Foreign students should pay close attention to the final rule and keep in touch with their school advisers and immigrant attorneys to make sure that they comply with all legal requirements. 

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