The federal court decision on 12th August, 2015 has placed the STEM OPT extension under threat. This verdict has caused a major uproar! There is widespread confusion and uncertainty among students who hold a STEM degree from US institutions and are currently completing their 12-month OPT. In fact, many individuals planning to apply for US admission for the spring/fall 2016 terms are unsure whether they should travel to the US and if doing so will allow them to work post-masters. Through this post, we aim to shed light on this situation.
What is OPT STEM?
Optional Practical Training (OPT) is temporary employment related directly to an F-1 student’s field of study. Under previous guidelines, an F-1 student is permitted to undertake 12 months of practical training either prior to or following graduation. Students graduating with a STEM qualification (Science, Technology, Engineering, or Mathematics) qualify to remain in the US for an extra 17 months via an optional practical training (OPT) STEM extension.
Facts of the case :
On 8th April, 2008, the Department of Homeland Security (DHS) released an Interim Final Rule (IFR) within the Federal Register. Based on this directive, OPT work eligibility was prolonged by 17 months for graduates from American academic institutions holding science, technology, engineering, or mathematics (STEM) credentials, provided their employer participates in E-verify. The primary goal of this policy was to provide eligible international students with a total of 29 months of OPT work authorization—combining the initial 12-month period with an extra 17 months reserved for STEM graduates whose employers are registered with E-verify.
In March 2014, the Washington Alliance of Technology Workers initiated a lawsuit in the United State District Court for the District of Columbia against the US Department of Homeland Security (DHS), arguing that the 17-month STEM OPT extension regulation enacted by DHS in April 2008 bypassed standard regulatory procedures, such as public notice and comment periods, rendering it unlawful.
The court finally issued a ruling on 12th August, 2015 determining that the STEM OPT extension policy would be invalidated starting 12th February, 2016 unless DHS adheres to the mandated formal notice and comment procedure and subsequently republishes the rule.
Implications of the judgement
The judicial ruling places the ongoing STEM OPT program in jeopardy, yet it does not prevent individuals from applying for and receiving a STEM extension leading up to 12th February 2016. Throughout this six-month window, DHS is anticipated to republish the rule for public notice, commentary, and final adoption. Should DHS comply with the court mandates, the STEM and cap-gap OPT extensions will experience zero disruption.
The court concluded that an immediate cancellation of the updated rule would cause severe disruption, not only for thousands of F-1 students in the US who would face immediate deportation, but also for employers who would suffer significant hardship if these staff members abruptly lost their jobs. Consequently, for the interim period, any STEM graduate currently utilizing a 12-month OPT ending before 12th February 2016 may apply for the 17-month OPT extension following standard protocols up to 120 days prior to expiration. It remains highly probable that USCIS will reinstate the 17-month extension directive by 12th February, 2016, restoring normal operations.
For students whose 17-month OPT STEM extension remains valid past 12th February, 2016, if they become unable to work past 12th February 2016 due to the upheld court decision, the OPT extension policy will officially terminate on February 12, 2016. This implies that even if the extension was previously approved beyond that date, it will lose its validity. Such students will be granted a 60-day grace period to pursue alternative options or depart the USA.
In the worst-case scenario, should DHS/USCIS fail to republish the existing OPT STEM extension regulation through the formal rulemaking process of notice and comment, then following 12th February 2016, all F-1 students on an OPT extension will receive a 60-day grace period to explore alternative paths, such as enrolling in another academic program, or exit the US.
For prospective students seeking admission for spring/fall 2016, it is vital to remember that the standard 12-month OPT remains unaffected by this verdict. Therefore, all such students can complete 12 months of OPT employment following graduation. The current court ruling applies exclusively to the 17-month STEM OPT extension.
In all likelihood, DHS will resolve the issue and republish the STEM OPT extension regulation. The OPT extension has consistently remained a priority and formed part of President Obama’s Executive Action from November 2014. Therefore, students eager to pursue their MS degree in the United States of America have no cause for alarm and should proceed to achieve their aspirations!