Tagged: STEM OPT Rule

Court grants 90-day extension of current STEM OPT rule while new STEM OPT rule is finalized

January 25th, 2016 in STEM OPT rule

We are pleased to report positive progress in the court case brought against U.S. Department of Homeland Security (DHS) by the Washington Alliance of Technology Workers (WashTech) related to STEM OPT.

On January 23, 2016, the U.S. District Court of the District of Columbia granted a motion that had been requested by U.S. Department of Homeland Security to extend the vacatur on the STEM OPT program for an additional 90 days until May 10, 2016.

Although the STEM OPT program was in jeopardy of ending effective February 13, 2016, the court’s 90-day extension allows additional time for DHS to complete rulemaking on the new proposed STEM OPT rule that was published on October 19, 2015. Comments on the proposed rule are in the process of being reviewed by DHS in order for the new rule to be revised and published in final form.

Should you have specific questions about this news will impact your situation, please contact ISSO staff.

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BU ISSO and students await court decision on the STEM OPT program

January 22nd, 2016 in STEM OPT rule

Boston University continues to closely follow the court case brought against U.S. Department of Homeland Security (DHS) by the Washington Alliance of Technology Workers (WashTech), which could eliminate or expand the STEM OPT program.

At the current time, no decision has been made on whether to grant a temporary extension of the STEM OPT program beyond the vacatur date of February 12, 2016. If the court does not grant DHS' motion to extend the stay of vacatur, the current 17-month STEM OPT rule would expire effective February 13, 2016.

For F-1 students currently approved for STEM OPT, please be aware that STEM OPT employment authorization might be terminated effective February 13, 2016, unless the court grants further relief to students already approved for STEM OPT.

For F-1 students with pending applications for STEM OPT extensions, DHS suggested that if the vacatur is not extended, it may have to consider options like returning any pending STEM OPT applications and requiring that applicants refile after the effective date of a final rule.

BU students with questions about their case, may contact the ISSO for further guidance. We will be updating student clients as soon as further decisions are made by the court on this important matter.

A summary of recent developments is as follows:

  • October 19, 2015 – DHS published the much-anticipated proposed STEM OPT rule, allowing a 30 day period for public comment.

  • November 18, 2015 – As the end of the 30-day public comment period, DHS had received over 50,000 comments to the proposed rule.

  • December 22, 2015 – DHS filed a motion to extend the stay on the court’s original vacatur order for the current STEM OPT rule, asking that the court allow the current 17-month STEM OPT rule to continue for an additional 90 days, until May 10, 2016. The additional time would be used to complete rulemaking and “train agency personnel and coordinate with the regulated community.”

  • January 11, 2016 – The Washington Alliance of Technology Workers (WashTech) filed a response to DHS's December 22, 2015 motion, arguing that the District Court should not grant the extension until May 10, 2016 that DHS requested in its motion.

  • January 14, 2016 - DHS filed a response brief to WashTech's January 11, 2016 response, arguing that the district court does have jurisdiction to extend its stay of vacatur through May 10, 2016, and asking the court to reject WashTech's opposition brief.

    In addition, DHS made the following important request in its brief: "In the event the Court denies DHS's Rule 60(b)(6) motion, the agency respectfully requests that the Court clarify that its vacatur will not affect the legal status of F-1 students holding unexpired employment authorization documents ("EADs") granted under the 2008 STEM OPT Extension rule, and their dependents. Such an order of clarification is appropriate in light of the interests of many F-1 students, their schools, and their employers, and would help DHS ensure that it is in full compliance with the Court's order. Moreover, it will assist interested parties greatly as this case continues to move forward." DHS also asked the district court to issue a decision on its motion to extend the vacatur date "as expeditiously as possible.

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DHS publishes new proposed STEM OPT Rule

October 28th, 2015 in STEM OPT rule

On Monday, October 19, 2015, the U.S. Department of Homeland Security published a new proposed regulation on F-1 STEM OPT. This new proposed regulation addresses the recent court ruling to invalidate the current STEM OPT program.

DHS is currently accepting public comments on the new proposed rule for a 30-day period, after which time it will review comments and may make modifications to the rule before publishing final STEM OPT regulations.

The new proposed rule includes many provisions favorable to international students and indicates that DHS is actively taking steps to continue the STEM OPT benefit. However, it is not clear whether the rule-making process will be completed before the February 12, 2015, date on which the current STEM OPT program is scheduled to become invalidated.

International students in F-1 immigration status are generally eligible to apply for a 12-month period of Optional Practical Training (OPT) for each higher level of education. According the interim STEM OPT rule of 2008, students completing degrees in certain major fields in Science, Technology, Engineering, and Math (STEM), are eligible to apply for a one-time 17-month extension of their OPT for employment directly related to their STEM major field with an eligible E-Verify employer.

See: Key Provisions of the Proposed STEM OPT Rule

Please note: The provisions of this new rule are proposed and not final.

DHS has indicated that unless the court makes a new ruling on the case, it will continue to adjudicate applications for STEM OPT extensions under the current 2008 interim regulations until the existing regulation is vacated on February 12, 2016.

In the event that a new final rule is not published before February 13, 2016, STEM OPT extensions may be suspended indefinitely until a new STEM OPT ruling is finalized.

Boston University ISSO will continue to actively monitor the status of the STEM OPT lawsuit and the progress of the STEM OPT rule and will update students as soon as information becomes available.

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

September 3rd, 2015 in STEM OPT rule

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.

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