Melanie Gurley KeeneyToday, Wednesday, March 9, 2016, the U.S. Department of Homeland Security released the much anticipated Optional Practical Training STEM Employment Authorization final rule. The rule is scheduled to be published in the Federal Register on Friday, March 11, 2016.
As a background, the STEM OPT EAD Extension program was approved back in 2008 by President George W. Bush’s administration. The STEM OPT EAD Extension program allowed a 17-month extension of the Optional Practical Training (OPT) employment authorization program for international students who were working toward a science, technology, engineering or mathematics (STEM) degree and working for employers enrolled in the E-verify program. The approval of the STEM OPT extension sought to alleviate the situation with the oversubscribed H-1B visa program (H-1B visa cap) by providing for CAP gap work authorization.
On August 12, 2015, the U.S. District Court for the District of Columbia issued a decision that would serve to terminate the optional practical training extension program for F-1 STEM students unless the Department of Homeland Security (DHS) addressed the matter within six (6) months. Washington Alliance of Technology Workers, a collective-bargaining organization that represents science, technology, engineering, and mathematics (“STEM”) workers, sued the U.S. Department of Homeland Security (DHS) challenging the interim final rule promulgated by the DHS back in April 2008 extending the duration of optional practical training for eligible STEM students. [Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, case number 1:14-cv-00529, U.S. District Court for the District of Columbia]. On August 12, 2015, U.S. District Court issued a decision vacating the 17-month STEM OPT extension. The court ruled that the DHS had violated the Administrative Procedure Act (APA) by improperly bypassing the public comment process when creating the STEM OPT extension program back in 2008. The Court ordered that the program be cancelled, staying the order until February 12, 2016, during which time the DHS could submit the 2008 Rule for proper notice and comment.
On August 18, 2015, Washington Alliance of Technology Workers appealed the court’s decision on the merits of the case rather than the procedural violations of the APA, seeking to invalidate the Court’s order which implicitly recognized the authority of the Executive Branch to implement the STEM OPT Extension Program without legislation. The Washington Alliance of Technology Workers challenged the legal authority of the DHS to implement the STEM OPT Extension Program without legislation.
On October 19, 2015, the U.S. Government introduced the STEM OPT EAD Extension proposed rules seeking to expand and improve the program. The proposed rules would allow certain STEM students to extend their OPT employment authorization period to 24 months, as well as improve and increase oversight over OPT STEM OPT extensions by requiring the implementation of formal mentoring and training plans by employers and by adding wage and other protections for OPT students and U.S. workers. The proposed rule would authorize STEM OPT EAD extensions only for students with degrees from accredited schools and whose employers are enrolled in the USCIS E-Verify Employment Eligibility Verification Program. The proposed rules also would include the “Cap-Gap” relief originally introduced by the 2008 rule for students with a timely submitted H-1B visa petition and request for change of status. The “Cap-Gap” relief would allow eligible students to automatically extend the duration of their F-1 visa status and any current employment authorization document until October 1st of the fiscal year for which the H-1B visa petition is being sought.
On January 23, 2016, the Court granted the Department of Homeland Security’s Motion for limited relief from the Court’s August 12, 2015 order and ordered the vacatur of the 17-month STEM OPT EAD extension be further stay from February 12, 2016 until May 10, 2016. Accordingly, students working on STEMP OPT EAD extensions continue to be in legal status and continued to be authorized to work on the STEM OPT EAD extension until May 10, 2016. On February 11, 2016, Washington Alliance of Technology Workers submitted a motion challenging the Court’s authority to extend the vacatur date until May 10, 2016. On February 22, 2016, the Department of Homeland Security filed a response in opposition to the Washington Alliance Technology Workers”™ motion.
With today’s release of the final rule by the Department of Homeland Security, it appears that the Department will be able to have the rule become effective before the May 10, 2016 vacatur date set by the court.
We will continue to monitor the status of the case and of the STEM OPT EAD Extension regulations and provide you with updates.