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Special Alert: DHS Granted Extension to Continue STEM OPT Rulemaking Process

January 26, 2016

UPDATE: DHS Granted Extension to Continue STEM OPT Rulemaking Process

As previously reported, a portion of a 2008 rule by the U.S. Department of Homeland Security (DHS) concerning work authorization for international students was struck down due to deficiencies in the rulemaking process. The U.S. District Court for the District of Columbia provided DHS with a deadline of February 12, 2016 to submit a new rule and properly follow the public notice and comment process. DHS published a proposed rule in October 2015. However, due to over 50,000 comments, DHS filed a Motion for Limited Relief from the Court’s Order, requesting more time to respond to public comments and train agency personnel on the proposed rule. On January 23, 2016, the Judge granted DHS’s Motion for a Stay of Vacatur for an additional period of 90 days, leaving the existing STEM OPT rule in place until May 10, 2016.

The portion of the 2008 rule at issue, concerning the Optional Practical Training (OPT) Program, allows extensions of up to 17 months for students with a degree in a science, technology, engineering, or math (STEM) field in addition to the 12 months allowed for all international student graduates. DHS now has until May 10, 2016 to implement the proposed STEM OPT Rule or the Court decision invalidating the 17 Month STEM OPT Extension becomes effective. Consequentially, the STEM OPT Program in its current form will not be disrupted on February 12, 2016.

Employees with valid STEM OPT EADs can continue working. The Department is expected to continue issuing 17 Month STEM OPT extensions until May 10th or in accordance with the publication of the proposed STEM OPT Rule, whichever takes place first. However, beyond May 11th individuals may be at risk of losing employment authorization if DHS does not implement an updated rule.

EIG will continue to monitor the situation and provide updates as they develop. If you have questions regarding the STEM OPT Program please contact EIG at USVisa@eiglaw.com.