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Court Extends Vacatur on OPT Extensions for STEM Students

One of the major immigration developments for 2016 is a proposed rule from the Department of Homeland Security (DHS) that would allow certain F-1 students to extend their period of “optional practical training” (OPT) if they have degrees in science, technology, engineering or math (STEM) from US schools. On January 23, 2016, in the latest development in a lawsuit against DHS by a lobbying group, the Court granted DHS’s request and stayed the vacatur against the program until May 10, 2016. STEM EADs that may have been impacted will now continue to be valid at least until May 10, 2016. 

The Proposed Rule and Lawsuit: Background

The proposed rule would increase the allowable OPT period for certain STEM students from 29 to 36 months. The regulation comes after a federal judge in the US District Court for the District of Columbia vacated a previous 17-month STEM extension in August 2015, effective February 13, 2016. The proposed rule was intended to reauthorize the program before the February end date, as well as add a number of enhancements. 

On December 22, 2015, after receiving over 50,000 comments on the proposed rule, DHS moved for an extension of the vacatur until May 10, 2016. On January 14, 2016, DHS reiterated its request and asked the court to clarify that existing STEM extension recipients would not be affected by the expiration of the current STEM extension rule. On January 23, 2016, the Court granted DHS’s request and stayed the vacatur so that DHS could finalize a new STEM OPT regulation, giving due attention to the voluminous comments it received from the public in response to its proposed rule. 

Benefits and Restrictions for STEM OPT in the Proposed Rule

Along with some new benefits, there are new restrictions and workforce protections included in the proposed STEM OPT regulation. 

First, the employer would be required to work with the student to develop a formalized mentoring and training plan before the student’s designated school official would be able to recommend the STEM OPT extension. The plan “must explain how the employment will provide a work-based learning opportunity for the student by stating the specific goals of the STEM practical training opportunity and describing how those goals will be achieved; detailing the knowledge, skills, or techniques to be imparted to the student; explaining how the mentorship and training is directly related to the student's qualifying STEM degree; and describing the methods of performance evaluation and the frequency of supervision.” 

The employer would also be required to attest to a number of provisions designed to protect both US workers and the foreign national employee/s on STEM OPT. Finally, as with the existing STEM OPT program, this proposed rule would require the employer to be enrolled in the E-Verify program.

Our Prediction

The issuance of the final regulation will unfold against the backdrop of an appeal at the DC District Court over the OPT program, with the Washington Alliance of Technology Workers alleging that the program is unlawful. The DC District Court already opined that the program is within the scope of DHS’s regulatory authority, but that the original 2008 rulemaking process was flawed. Therefore it seems the plaintiffs face an uphill battle.  

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Susan J. Cohen

Member / Founder and Chair Emeritus, Immigration Practice

Susan J. Cohen is Chair of Mintz's Immigration Practice and a nationally recognized Immigration lawyer. She helps corporate clients manage immigration challenges. Susan is an American Immigration Lawyers Association (AILA) member and she's contributed to state and federal immigration regulations.