Is This the End for STEM OPT Extensions?

The District Court for the District of Columbia in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security (DHS) ruled that DHS in its 2008 interim final rule did not follow regulatory procedures when it created the 17-month STEM (Science, Technology, Engineering or Mathematics) OPT extension. The regulation granted F-1 students an additional period of Optional Practical Training (OPT) if they graduated from a U.S. university/college with a STEM degree field.

Specifically, the Court declared that DHS promulgated the rule without notice and comment and agreed with the Technology Workers that the rule should not have been given immediate effect. Given the significant number of F-1 students working in the U.S. pursuant to the STEM extension OPT, the court found that vacating the rule immediately would create a significant disruption in the business community and thus ruled that the order will not become effective until February 12, 2016. The court provided DHS with six months to submit the rule for proper notice and comment.

Whether DHS will be able to complete the process and issue a proper regulation by February 12, 2016, as well as many other unanswered questions remain to be seen. We will stay on top of this very important issue and provide updates as information becomes available.

Please contact your Maggio Kattar attorney if you have further questions.