2015-09-10
The STEM OPT Program: Next Steps and Planning for F-1 Students and Employers
United States
Following the recent court ruling in Washington Alliance of Technology
Workers v. DHS (WashTech), the Department of Homeland Security is expected
to publish the regulation that established the STEM optional practical
training (OPT) program for notice and comment to ensure that the program
continues uninterrupted. Meanwhile, the STEM OPT regulation remains in
place, allowing F-1 STEM students to seek an OPT extension and to work
pursuant to an approved STEM OPT employment authorization document (EAD).
The court’s ruling has prompted inquiries from employers and F-1 students
concerned about the future of the STEM OPT program. Fragomen has prepared
answers to the following frequently asked questions about the court’s
decision, DHS’s next steps and what employers and F-1s should do now.
In the wake of the WashTech decision, what must DHS do to ensure that the
STEM OPT program remains in place without interruption? Will the agency meet
the deadline set by the court?
In the WashTech case, U.S. District Judge Ellen Huvelle invalidated the
federal regulation establishing the STEM OPT program on the ground that DHS
had not followed the proper administrative process when it implemented the
rule. Judge Huvelle immediately stayed her ruling and allowed the program to
remain in place in the near term, granting DHS until February 12, 2016 to
bring it into compliance with federal regulatory procedures. In doing so,
Judge Huvelle made clear that she wanted to avoid hardship and disruption to
F-1 STEM students and their employers.
To ensure that the STEM OPT program continues without interruption, DHS is
required to publish the regulation in the Federal Register by the court’s
deadline and give the public an opportunity to submit comments. The notice
and comment process has historically been a lengthy one, though the
timelines prescribed by law allow an agency to move through the required
procedures in a matter of months.
DHS has very strong incentives to keep the STEM program operating without
interruption and as such, there is every reason to believe that DHS will
work to meet its regulatory obligations within the period granted by the
District Court. However, employers and F-1 foreign nationals should be
aware that DHS may not complete its obligations until just before the court
’s deadline. Furthermore, the possibility that DHS may ask the court for
extra time cannot be ruled out.
Will the WashTech decision be appealed?
The plaintiffs have appealed the ruling to the U.S. Court of Appeals for the
D.C. Circuit. They are expected to challenge the District Court’s finding
that DHS has the authority to create employment programs for F-1 students
and the court’s decision to stay its invalidation of the STEM OPT
regulation to give DHS time to meet procedural requirements.
As of now, the plaintiffs have not filed any emergency motions that would
necessitate immediate action by the Court of Appeals. As such, Judge
Huvelle’s decision and stay of her own ruling are likely to remain in place
in the near term.
In complying with the court’s ruling, will DHS issue a new STEM OPT
regulation or will it simply republish the existing regulation?
One likely option is for DHS not simply to publish the STEM OPT rule in its
current form but to issue a new proposed regulation with substantive changes
to the program. Such a plan was announced at the presidential level as
part of the White House’s modernization program for the legal immigration
system and has been in the planning stages for some time. The specific
contents of the proposed rule will not be disclosed until it is published in
the Federal Register, but it is anticipated to increase the STEM OPT
extension period, expand the list of degree programs eligible for the
extension and require degree-granting schools to ensure that there is a
relationship between a foreign national’s degree and his or her STEM OPT
employment. It is also possible that the rule could permit foreign
nationals with a prior U.S. STEM degree to seek an OPT extension.
Another option is for DHS to republish the current STEM OPT regulation for
public comment, though publication of a new proposed rule with program
revisions is more likely.
Will organizations have the opportunity to comment on the STEM OPT
regulation?
Yes. When DHS publishes the STEM OPT regulation in the Federal Register, it
will provide the public with a period of time within which to submit
comments, typically 30 to 60 days.
Comments from employers will be crucial not only to provide feedback on
proposed substantive changes to the program but to make DHS aware of the
critical importance of the STEM OPT program to U.S. businesses and the
disruption that would occur if the program were to lapse because the agency
did not meet its obligations in a timely way. If your organization is
interested in submitting comments on the forthcoming proposed regulation,
please contact your designated Fragomen team or the firm’s Government
Strategies Group.
Is a new STEM OPT program likely to be implemented in the current political
environment? Will it be challenged in court?
Once the forthcoming proposed rule is published in the Federal Register, we
expect robust discussion and a large number of comments from the public.
The anticipated proposal has already drawn criticism from some in Congress,
but we know of no reason to believe that these criticisms alone would delay
publication of the regulation in compliance with the court’s deadline.
Though the WashTech court held that DHS has the authority to create
employment programs for F-1 students and that there is a long history of
congressional approval for such programs, another court challenge cannot be
ruled out, particularly in view of a pending lawsuit challenging the H-4
spousal employment regulation and the common team of attorneys assisting in
both cases.
What is the impact of the WashTech decision on F-1 students who have already
obtained a STEM extension of OPT? Could STEM OPT work authorization end on
February 12, 2016 if DHS does not meet the deadline to comply with its
regulatory obligations?
Because Judge Huvelle stayed her decision, the current STEM OPT regulation
remains in place as it exists now, including the 17-month extension period.
DHS has announced that it plans to issue guidance on the impact of the
decision, but there are no indications that it is planning to truncate the
work authorization of F-1 students whose OPT has been extended under the
current rule. F-1 students who have already been approved for a 17-month
extension of OPT on the basis of a qualifying STEM degree should remain
eligible to work through the expiration of their STEM OPT employment
authorization document (EAD), even if that date falls after the February 12,
2016 deadline.
In the unlikely event that DHS were to fail to meet the deadline, we would
not expect it to cancel otherwise valid STEM OPT EADs unless the court were
to order such an action. Given DHS’s strong incentive to comply with the
court’s order, and the court’s desire to avoid causing hardship to F-1
students and employers, we do not expect this outcome.
What about F-1 students with a pending application for a STEM extension of
OPT? Will new STEM OPT EADs be issued for less than 17 months?
The expectation is that USCIS will continue to adjudicate pending
applications for STEM OPT extensions and accept new applications. F-1s who
file a timely application for a STEM extension remain authorized to work for
an additional 180 days after their initial OPT EAD expires, in accordance
with current program rules.
Because the District Court ordered the STEM OPT regulation to remain in
place for now, DHS is expected to issue extension EADs for their full 17
months’ validity, though we are awaiting confirmation from the agency.
In the event that DHS does not meet the February 12, 2016 deadline to
publish the STEM OPT regulation, it may suspend the adjudication of pending
OPT applications at that time and stop accepting new filings until the
regulation is brought into compliance. This could result in a gap in
employment authorization for some.
What actions should employers and F-1 students take now?
At this stage, employers and F-1 students working on OPT should work with
their designated Fragomen team to stay apprised of developments relating to
the STEM program. Employers and F-1s should not assume that the program
will be invalidated permanently, but should be aware that DHS may not
complete the steps necessary to continue the program until the last minute,
and could even request additional time to do so. This could mean a period
of uncertainty for F-1s working on OPT now and planning to seek a STEM
extension before their current OPT EAD expires.
Though it is expected that DHS will do what is necessary in time to ensure
that the STEM OPT program continues without interruption, your organization
may wish to contact its Fragomen team to determine whether current F-1 OPT
employees are eligible for other nonimmigrant categories. Performing a
preliminary assessment of alternatives now may help to reduce the risk of
gaps in employment authorization in the event that there are delays in the
regularization of the STEM OPT program.
Fragomen is closely monitoring the STEM OPT program and will update clients
as developments occur. If you have questions about this client alert,
please contact your designated Fragomen professional.
