Recent Court Ruling Puts F-1 STEM OPT Extensions in Jeopardy

in STEM OPT rule
September 3rd, 2015

On August 12, 2015, the U.S. District Court for the District of Columbia ruled to invalidate the 17-month OPT extension available to students in certain Science, Technology, Engineering and Math (STEM) majors. This decision was made in response to a suit filed by the Washington Alliance of Technology Workers, claiming that the U.S. Department of Homeland Security (DHS), in establishing the 17-month extension of OPT in 2008, did not follow the normal rule making process, including public notice and allowing a comment period.

In order to prevent an immediate impact to students on authorized STEM OPT and to U.S. employers, the District Court issued a temporary stay of the decision, pushing the effective date to February 12, 2016. This six-month period allows DHS time to appeal the Court’s decision, and to address some of the concerns brought by the suit, including the ability to follow normal rule making processing, public notice and comment.

At the current time, F-1 students employment under the STEM OPT extension do not need to take any action, and students eligible for STEM OPT can still continue to submit applications to the U.S. Citizenship and Immigration Service for adjudication.

However, it is not clear what will happen to the 17-month STEM OPT extension benefit on and after February 12, 2016. If DHS proceeds with publishing the rule for “notice and comment,” and follows the appropriate rule-making steps, then STEM OPT may remain in effect after February of 2016. However, if a new rule is not implemented by DHS after proper notice and comment, then the Court decision to vacate STEM OPT may stand.

The ISSO continues to monitor the progress of this important rule, and will advise affected students and departments when there is further clarification about whether this Court decision will stand and about whether the STEM OPT benefit will change in the coming months.

General information about F-1 student eligibility for STEM OPT and about preparing a STEM OPT application can be found in the Employment section of the ISSO website. Questions can be addressed to your ISSO Student Advisor.

For BU hiring departments please refer to our Scholar Processing Section for instructions on how to hire or extend work permission for a recent U.S. gradate working under F-1 STEM OPT. Question on hiring and sponsorship strategy should be addressed to the Scholar Advising team.